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1984 Supreme(Pat) 224
PATNA HIGH COURT
Satya Brata Sanyal, J.
Suntosh Kumar Banerjee
Versus
Krishna Kant Gupta
Appeal From Appellate Decree No. 207 of 1980 ;
Decided On : MAY 31, 1984
Subject
Easement - Easement of Necessity
Act Referred
Headnote
Limitation Act, 1963, Sec. 25-For acquiring easement by prescription one has to plead and prove that right claimed must have been enjoyed Independent of any agreement with the owner or occupier of the land over which the right is claimed-The right must have been enjoyed peaceably, openly us of right, as on easement, without Interruption for twenty years or more. (Para 7)
Case Summary: Suntosh Kumar Banerjee vs. Krishna Kant Gupta (Patna High Court, 1984)
Subject and Legal Principles: The case concerns easement of necessity under the Easements Act (Sections 13, 15). An easement of necessity arises only upon severance of tenements that were previously under common ownership, dividing a single tenement into separate units where one cannot be used without a privilege (e.g., right of way) over the other. It is implied by law on principles of justice, equity, and good conscience, not mere convenience.[judgement_subject][judgement_act_referred]
Factual Background: R.S. Plot No. 178 (recorded as Kast land) was sold in 1934 to plaintiff No. 1 (northern portion) and defendant's ancestor (southern portion). Defendant's ancestor built a house in 1936 and purchased a passage on adjacent Plot No. 179 (west of Plot 178, leading to Kutchery Road) from a third party. Plaintiffs claim easement of necessity over this fenced passage on Plot 179, alleging prior joint use and current obstruction by a wall. Northern portion of Plot 178 later transferred to plaintiff No. 2, with alternative access via a cinema hall door disputed as inadequate. (!) [8000056580001][8000056580002]
Trial Courts' Findings: Lower courts decreed plaintiffs' suit for easement of necessity, holding they would be land-locked without the passage and rejecting shared family access arguments.[8000056580001][8000056580003]
High Court's Analysis on Easement of Necessity: The claim fails as Plots 178 and 179 never formed a single tenement under common ownership, nor was there severance creating necessity. Popular notion that lack of alternative access alone grants such easement is incorrect; unity of ownership is essential. (!) [8000056580003][8000056580004][8000056580005]
Easement by Prescription: Plaintiffs faintly claimed long user (>20 years), but failed to plead/prove peaceful, open enjoyment as of right, independently of permission. Evidence shows plaintiff sought permission, negating prescription under Limitation Act, 1963, Section 25.[8000056580006]
Decision: Second appeal allowed; lower courts' judgments/decrees set aside. No costs ordered.[8000056580007]
1. Defendants second appeal is against concurrent judgment of the Courts below decreeing the plaintiffs suit for easement of necessity.
2. The suit has been decreed on the popular notion about an easement of necessity that whenever a man has no other way, he can claim the right to go over his neighbour"s land, which, however, is not supported either by principle or by authorities. The crucial question involved in this appeal is what is an easement of necessity.
3. The short facts germane to the said issue in appeal are as hereunder. There is one R.S. Plot No. 178 situated in village Gopalpur, P. S. Motihari, under Motihari Municipality. The land was recorded as Kast land of one Laldhari Mahra. After the death of Laldhari Mahra his heirs sold the land in the year 1934 to plaintiff No. 1 and the ancestor of defendant. Shri Ravindra Nath Mukherji through separate sale deeds. Plaintiff No. 1 purchased towards the north of the said plot and the ancestor of the defendant towards the south. In the year 1936 Ravindra Nath Mukherji built his house on his purchased land. Plaintiff No. 1, however, used the land purchased for growing vegetables. Towards the further west of the said plot is the Kutchery road intervened by Plots Nos. 179 and 180. Plot No. 179 belonged to Usuf Mian. Ravindra Nath Mukherji on 9-11-1936 purchased a portion of Plot No. 179 from the wife of Usuf Main (Ext. B) for having a passage for his going over to Kutchery road from his house. Plaintiff No. 1 claimed right of easement of necessity over this passage, purchased by Ravindra Nath Mukherjee on the ground that even prior to the purchase both the plaintiff and Ravindra Nath Mukherji used to go to Kutchery road by crossing over Plot No. 179 belonging to Usuf Main. Admittedly the passage is fenced and it opens in the house of Ravindra Nath Mukherjee. According to plaintiff, the passage was fenced sometime in the year 1969 whereas according to the case of the defendant, it was so done sometime in the year 1939 when defendant constructed this house. The remaining portion of Plot No. 178 towards the north was purchased by one Satya Narain Prasad, who has, however, sold it to one Rajpati Prasad, father of Plaintiff No. 2. Plaintiff No. 1 has also sold away his portion of Plot No. 178 to Rajpati"s son, who is plaintiff No. 2 in this suit. Further north of Plot No. 178 is Chitra Mandir Cinema Hall which has a door through which father of plaintiff No. 2 goes to Kutchery road. There is a back door in the house of the father of plaintiff No. 2 which opens on the land which plaintiff No. 2 has purchased from plaintiff No. 1. In the suit the plaintiffs have prayed that they have right of easement of necessity over survey plots Nos. 179 and 180 through the passage shown in blue in the sketch map, belonging to Ravindra Nath Mukherjee and the defendants have no right to obstruct the plaintiffs" right of a passage for going over this land bearing survey plot No. 179 by erecting a wall. They have prayed for demolition of the wall by the defendant. At the present moment it is said that they use the passage over Plot No. 179 by scaling the wall.
4. One salient fact which has to be borne in mind is, according to none of the parties" case, plot No. 179 on which plaintiff claimed the right of way as an easement of necessity ever formed a single unit along with plot No. 178 and as a result of subsequent transfer, bequest or partition, the unit constituting plot No. 178 on account of its situation was deprived of a road (right) of way over Plot No. 179. The Courts below have held that the plaintiff-respondents have easement of necessity to pass along with the disputed Rasta and unless the said Rasta is conceded to the plaintiff they will be land-locked. It has further been held that plaintiff No. 2, who has now acquired Ram Lagan"s interest in plot No. 178, cannot use the Rasta of his father as the father and son have separate avocations. It has further been held that plaintiff No
