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2018 Supreme(Pat) 1502
IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Ravindra Kumar – Appellant
Versus
Yatendra Narayan Chaudhary – Respondent
Second Appeal No. 383 of 2013
Decided On : 28-06-2018
For the Appellant :Mr. Jitendra Kishore Verma, Advocate
For the Respondent:Mr. J.S. Arora, Sr. Advocate, Mr. Ajay Kumar Jha and Mr. Pankaj Kumar Jha, Advocates
The court clarified the requirements for establishing easement by necessity and emphasized the importance of clear pleadings and proof in easement cases.
Headnote:
Easement - Dispute over Right of Way - Indian Easements Act, 1882 - section 13
Fact of the Case:
The respondent sought a declaration of his right of easement over a pathway and removal of obstruction created by the appellant. The appellant claimed ownership and possession of the disputed land and denied the respondent's right of easement.
Finding of the Court:
The trial court dismissed the suit, finding that the plaintiff had intentionally blocked his own exit and could not claim the right of easement by necessity. The first appellate court reversed the decision, holding that the plaintiff had a valid cause of action and acquired easement by necessity. The second appellate court allowed the appeal, setting aside the first appellate court's decision and restoring the trial court's judgment.
Issues: The core issues were whether the plaintiff had a right of easement over the disputed land and whether the plaintiff's land had an alternative way to the road.
Ratio Decidendi: The plaintiff's claim for easement by grant failed, and the easement by necessity could not be established as there was no apparent ground for seeking such easement rights. The plaintiff was found to have intentionally blocked his own exit, and the claim for easement by necessity was not sustainable.
Final Decision: The second appeal was allowed, setting aside the first appellate court's decision and restoring the trial court's judgment.
Chakradhari Sharan Singh, J.
This second appeal has been filed against the judgment and decree dated 31.10.2013, passed by the learned Ad hoc Additional District and Sessions Judge V, Patna, in Title Appeal No. 47 of 2010., whereby the learned appellate court below has reversed the judgment and decree dated 21.05.2010, passed by the learned Sub-Judge-II, Danapur, Patna, in T.S.No.78 of 1999, whereby the said suit was dismissed.
2. The suit was instituted by the respondent herein, seeking declaration of his right of easement over a piece of land described in Schedule-III of the plaint, a pathway. He also sought for a declaration that the appellant-defendant did not have any right to cause any obstruction in peaceful user by the respondent(plaintiff) over the suit land and, if during the pendency of the suit, any kind of obstruction was created, the same be directed to be removed.
3. By way of amendment, the respondent had prayed for removal of obstruction created by the appellant/defendant from the suit land.
4. I have heard Mr. Jitendra Kishore Verma, learned counsel, appearing on behalf of the appellant (defendant) and Mr. J.S.Arora, learned senior counsel, appearing on behalf of the respondent (plaintiff). They have also submitted their written notes of arguments.
5. For the benefit of clarity and convenience, the appellant (defendant) and the respondent (plaintiff) are being described in the present judgment as per their party position in the title suit.
Case of the plaintiff (respondent)
6. The case of the plaintiff(respondent) is that plot no.219, having an area of 09 katha 17 dhur and 14 dhurki, belonged to one Sumitra Devi, who had transferred a portion thereof in favour of Lal Muni Devi by executing a sale deed dated 30.10.1975, admeasuring 02 katha 15 dhur and 17 dhurki. While conveying the said land in favour of the purchaser, Sumitra Devi retained small piece of the said plot adjacent north of the land as her road running east to west, having a width of 10 ft. The said land transferred through the sale deed has been described in the plaint as Schedule-II property. The land said to have been retained for the purpose of the road/lane finds place in Schedule-III of the plaint. Schedule-III land is the subject-matter of the dispute. The said Lal Muni Devi subsequently transferred the Schedule-II land in favour of one Nirmala Jha through a sale deed dated 10.05.1978 (Ext.4/A) with her right of user over the suit land as a Rasta. The said Nirmala Jha, while enjoying his right, title and interest over the schedule-II land, had been using the Schedule-III land as a pathway. Nirmala Jha transferred the Schedule-II land in favour of the plaintiff by executing a sale deed dated 10.02.1996 (Ext.4/B).
7. It was thus the case of the plaintiff that the plaintiff came in possession of the Schedule-II land and had been enjoying the disputed Schedule-III land as Rasta. It was his specific case that that through a sale deed dated 10.02.1996, Nirmala Jha had transferred Schedule-II land with all amenities, including the right of easement, over the Schedule-III land. He asserted that defendant no.2 executed a sale dated 05.05.1997 in favour of defendant no.1 (appellant) through which he illegally and without any right, transferred the Schedule-III land, though defendant no.2 was not competent to execute the sale deed dated 05.05.1997 (Ext.D/2) in respect of Schedule-III land since defendant no.2 had neither any title nor possession over the said land. On the strength of the said sale deed dated 05.05.1997, defendant no.1 had attempted to block the western extremity of Schedule-III land on account of which certain disputes had arisen and a proceeding under section 144 of the Cr. P.C., 1973 was initiated. The plaintiff pleaded that the plaintiff as well as his vendor had acquired a valid right of easement over the suit land. He also asserted before the court below that in defiance of the order of the trial court to maintain the status q
