The main legal point established in the judgment is that the court found the First Appellate Court exceeded its jurisdiction by granting relief on the ground of customary rights, which were neither pleaded nor proved by the original plaintiffs. The court emphasized the lack of pleadings concerning customary easement and the provisions of section 18 of the Indian Easements Act, 1882.

JUDGMENT :

M.S. SONAK, J.

1. Heard Mr. Nigel da Costa Frias for the appellant and Mr. M.B. D’Costa learned Senior Advocate for respondent No. 1.

2. After this matter was argued for some time, it became apparent that the impugned judgment and decree made by the First Appellate Court on 19-7-2007 will have to be set aside and the matter restored to the file of the First Appellate Court for disposal of Regular Civil Appeal No. 78 of 2005 afresh on its own merits and in accordance with the law.

3. This order will have to be made in this Second Appeal quite reluctantly and the brief reasons for the same are now set out hereafter.

4. The appellant is the original defendant No. 2 and respondent No. 1 is the original plaintiff in Regular Civil Suit No. 24/96/C. In the suit the plaintiffs had prayed for the following reliefs:

“(a) Suit may please be decreed with costs. Defendants, their servants and agents be restrained by permanent injunction from obstructing the Plaintiff from completing the construction of the suit house.

(b) The defendants be directed by Mandatory injunction to remove forthwith all the obstruction i.e. the compound walls put by them blocking the right of way on the Suit way of the plaintiffs to and around the suit house two meters in width from the suit house and from the compound wall of Cadastral Survey No. 12.

(c) This Hon’ble Court be pleased to declare that the persons occupying the suit house have easementary right over the suit way through the property bearing Cadastral Survey numbers 15 and 16 to enter the house and move around the house.

(d) The costs of this Suit be awarded to Plaintiff.”

5. The aforesaid reliefs were claimed inter-alia on the basis that the plaintiffs have an easementary right of 2 meters from over the property of the appellant herein and in any case, the plaintiffs have a right of way over this 2 meters access in terms of Sale-Deed dated 9-6-1921.

6. The trial Court vide judgment and decree dated 30-4-2005 dismissed plaintiffs’ suit. The First Appellate Court by the impugned judgment and decree dated 19-7-2007 has allowed the appeal. In doing so, the First Appellate Court has agreed with the finding of the learned Trial Judge that the plaintiffs have failed to establish a case of easement of necessity. However, the First Appellate Court, held that the plaintiffs have been able to establish that they have a customary right over this two meters access under Deed of 1921.

7. Mr. Costa Frias, has quite correctly pointed out that in the entire plaint there were no pleadings about any customary right. He has pointed out that since there were no pleadings, naturally, there was no evidence led on the aspect of customary rights. He pointed out that this issue of customary rights was not even argued by the original plaintiff before the First Appellate Court. He submits that in the name of moulding of relief, the First Appellate Court exceeded jurisdiction in granting relief on some ground which was neither pleaded nor proved by the original plaintiffs. He relies on the provisions of section 18 of the Easement Act, 1882 to elaborate on the concept of a customary easement. He also relies on the decision of the Hon’ble Supreme Court in Bachhaj Nahar vs. Nilima Mandal and Others, AIR 1009 SC 1103 in which the Hon’ble Supreme Court has set out principles as to when a case not specifically pleaded by a party can nevertheless be considered by the Court. For all these reasons he submits that the substantial questions of law that are framed in this matter may be answered in favour of the appellant and against the respondents.

8. Mr. M.B. D’Costa, learned Senior Advocate for the original plaintiff submits that the suit access was clearly reserved in favour of the original plaintiff by the Deed of 1921. He submits that there is ample evidence on record to establish the use of this access. He submits that even the ingredients of easement of necessity were made out but in any case, relief was due to the original plaintiff