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PATNA HIGH COURT
K.Ahmad and S.C.Prasad JJ.
Rajpur Colliery Co.
Versus
Pursottam Gohil
Appeal from Original Decree No. 434 of 1951 ;
Decided On : DECEMBER 19, 1958
RIGHT OF WAY - EASEMENT - IMPLIED GRANT - NECESSITY - COVENANT - TRANSFER OF PROPERTY ACT, SECTION 40 - TRANSFER OF PROPERTY ACT, SECTION 107 - LIMITATION ACT, SECTION 26 - EASEMENTS ACT, SECTION 19 - EASEMENTS ACT, SECTION 26 - TRANSFER OF PROPERTY ACT, SECTION 8.
Fact of the Case:
The plaintiff, the owner of a coal land, filed a suit for declaration of right of way for vehicles, men and others in the shape of a road between letters A and C and for a mandatory injunction compelling the defendants to provide a diversion indicated by letters B. C. D, from the road A to C. The defendants, the owners of an adjoining coal land, denied the existence of the road and claimed that they had a right to close any road existing or running over their demised land. The trial court decreed the suit.
Finding of the Court:
The High Court held that the plaintiff had acquired the right of way by implied grant, as the road in question was a well-formed one, necessary for the beneficial enjoyment of the plaintiff's land, and had been in existence for a long time. The Court also held that the plaintiff was entitled to enforce the covenant in the lease of the defendants' predecessor-in-interest, which prohibited the closure of any road in use or that might be constructed on the land, as the covenant was annexed to the land and the defendants had purchased the leasehold with notice of it. The Court further held that the plaintiff was not entitled to the right of way on the ground of easement of necessity, as he had an alternative route to his land.
Issues: 1. Whether the plaintiff had acquired the right of way by implied grant? 2. Whether the plaintiff was entitled to enforce the covenant in the lease of the defendants' predecessor-in-interest? 3. Whether the plaintiff was entitled to the right of way on the ground of easement of necessity?
Ratio Decidendi: 1. The Court held that the plaintiff had acquired the right of way by implied grant, as the road in question was a well-formed one, necessary for the beneficial enjoyment of the plaintiff's land, and had been in existence for a long time. The Court relied on the principles of implied grant as laid down in English cases and in Indian cases such as Brown v. Alabaster, (1887) 37 Ch D 490, and Borman v. Griffith, (1930) 1 Ch 493. 2. The Court held that the plaintiff was entitled to enforce the covenant in the lease of the defendants' predecessor-in-interest, which prohibited the closure of any road in use or that might be constructed on the land, as the covenant was annexed to the land and the defendants had purchased the leasehold with notice of it. The Court relied on the provisions of Section 40 of the Transfer of Property Act and the principles of restrictive covenants as laid down in English and Indian cases. 3. The Court held that the plaintiff was not entitled to the right of way on the ground of easement of necessity, as he had an alternative route to his land.
Final Decision: The appeal was dismissed with costs throughout.
S.C.Prasad, J.
1. This is an appeal by defendants 1 to 4 against the Judgment of the Subordinate Judge of Dhanbad decreeing the suit filed by the plaintiff-respondent No. 1 for declaration or the right of way for vehicles, men and others in the shape of a road 1030 feet x 20 feet shown on the sketch map attached to the plaint between letters A and C and for a mandatory injunction compelling the defendants to provide a diversion indicated by letters B. C. D, from the road A to C, There was also an alternative relief for compensation estimated at Rs. 2000/-for the loss of the road A to C if the first relief was not available to the plaintiff. He also claimed Rs. 2000/- as damages for the loss already suffered by him by having been deprived of the use of the road A to C.
2. The facts for the purpose of this appeal briefly stated are as follows. Raja Durga Prasad Singh, herein-after referred to as the lessor, was the owner of a large area of coal bearing land. On 14-7-1908 the lessor granted a coal mining lease of 95 bignas of land to Hardayal Singh and other in village Bherakatta for 999 years. On 13-11-1912 these lessees granted a sub-lease to Sheikh Imam Ali and Ramnath Banerji. It was aliened by the plaintiff that these sub-lessees developed the collieries and carried on their business in the name and style of "North Jharia Colliery". The plot, which was the subject matter of this lease and sub-lease, was plot No. 23 of the above village. The sub-lessees, Sheikh Imam Ali and Ramnath Banerji were alleged to have made residential quarters, office, bungalows and Dhowras (Blochi for labourers to live in) in the plot in or about the year 1913 and they and their successors, assignees and representatives were in possession thereof. In the month of August, 1934 the plot in question, namely, plot No. 23, together with, the colliery building etc. appertaining thereto were sold in auction sale in Execution case No. 520 of 1933 of a mortgage decree which had been obtained by the lessor for royalty due from the lessees, sublessees and their assignees and representatives, and was purchased by him. The lessor took delivery of possession of this property through court and a few months thereafter by a registered Indenture dated 26-2-1935, he granted a lease of the said coal land and collieries with surface and all other rights concerning or relating thereto together with all inclines, pits etc. to the plaintiff for a term of 999 years and since then the plaintiff claimed to have been in possession of coal land with all other rights by carrying on coal business therein in the name and style of "Khas Bhagatdih Colliery".
3. It may be mentioned that plot No. 24 adjoins plot No. 23 and this had been acquired by one Bhaban Jeba and others by a lease from the lessor in 1914 by a registered lease. This lease was transferred to the defendants-appellants in or about 1920, since when they have been in possession of that coal land and have been carrying on business of coal and have set up a colliery in that plot named "Rajapur Colliery".
4. It was further alleged by the plaintiff that the lessees Sheikh Imam Ali and his cosharer, their successors, assignees and representatives, who successively owned the North Jharia Colliery, and, thereafter, the plaintiff, his employees, miners and customers, had been using to the knowledge of the zamindar and other persons concerned the disputed portion of plot No. 24 of Mauza Bhera-katta for going to and coming from the bungalows and the colliery on foot and by cars and motor cars and for transporting coal and colliery stores etc from and to the said colliery by means of carts and motor trucks.
The plaintiff claimed to have acquired a right of way as easement on account of the user openly and without interruption for the last 37 years till he was illegally and wrongfully obstructed by the defendants who had on 22-8-1941 illegally and wrongfully cut three ditches across the road in plot No. 24 in the portion b
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