The doctrine of easement of necessity can be applied to establish easementary rights, and the Record of Rights has presumptive value on possession but does not determine property title.

JUDGMENT :

1. The present appeal arises from concurrent finding of facts arrived at by both the Courts below.

2. The plaintiffs/respondents filed a suit for declaration of their easementary right over the ‘kha’ schedule property and permanent injunction restraining the defendants/appellants from closing out the said property and also raising any obstruction and/or hindrances in ingress and egress of the plaintiffs/respondents.

3. The facts emerged from the record are that the ‘kha’ schedule property is the only pathway leading from the house of the plaintiffs/respondents to the village main road, which is situated on the northern side of the said plot and the aforesaid factum was recorded in the CS Record of Rights. However, during the revised settlement, the CS plot no. 1925 was divided into four plots, out of which RS plot no. 1925/2391 comprising of 4 decimal of land was recorded in the name of the mother of the defendants/appellants.

4. It is the specific case of the plaintiffs/respondents that since the said road was merged and/or shown mingled with the RS plot, the defendants/appellants are taking advantage thereof and denying the plaintiffs/respondents of their access to their plot of land through such pathway.

5. The defendants/appellants obviously denied the stand of the plaintiffs/respondents and took a defence that the ‘kha’ schedule property was shown as ‘vita’ and/or dwelling house and, therefore, cannot be treated as pathway or a way meant for ingress and egress of anybody. It was indicated in the written statement that the plaintiffs/respondents have a pathway on the southern side of the plot no. 1930, which, in fact, being used by the plaintiffs/respondents for their access to their plot.

6. On the conspectus of the aforesaid stands taken by the respective parties, oral evidence was adduced and some of the statements recorded in the deposition are heavily relied upon by the defendants/appellants before this Court.

7. The trial court after taking into account the totality of the evidence and the respective stands taken in the pleading held that the ‘kha’ schedule property is the only means for access to the plaintiffs/respondents for ingress and egress of their property and, therefore, applied the doctrine of easement of necessity after ruling out the case of easement by prescription.

8. During the currency of the suit, an application for appointment of a Commissioner to investigate the site was taken out by the plaintiffs/respondents, which was eventually allowed. It appears from the judgment of the trial court that two reports were filed by the Inspecting Commissioner touching upon the availability of any alternative pathway or the means of access to the plaintiffs/respondents. A further application was taken out by the plaintiffs/respondents for appointment of Survey Passed Commissioner to investigate the property, which was disallowed by the trial court.

9. Strangely enough, the defendants/appellants took a plea before the trial court that unless the investigation is done it is not possible to find out whether the plaintiffs/respondents have a right of easement of necessity. Even before us, a point has been taken that once the application for investigation has been rejected by the trial court, the judgment of both the courts suffers from illegality and/or infirmity as the core issue involved in the suit can only be conveniently decided upon an investigation being done in respect of the plots involved in the said suit. It is an bold attempt on the part of the defendants/appellants to approbate and reprobate at the same time.

10. It appears that the application for appointment of Survey Passed Commissioner for investigation was filed by the plaintiffs/respondents, which was dismissed obviously on the objection being raised by the defendants/appellants. It is, therefore, not open to the defendants/appellants to take a plea that unless the investigation is done, the primary issue involved in the said suit cannot be decide