Gopalbhai Jikabhai Suvagiya vs Vinubhai Nathabhai Hirani

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Guj) 924

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Gopalbhai Jikabhai Suvagiya – Appellant
Vs.
Vinubhai Nathabhai Hirani – Respondent
Second Appeal No. 208 of 2015
Decided On : 26-09-2018

Advocates Appeared:
Sejal K Mandavia, Adv., Anshin Desai, Adv., Venu H Nanavaty, Adv.

Headnote:
Indian Easements Act, 1882 - Section 22 and 4 - Land Case - Original plaintiff no.3 is the owner of Survey - Respondents had been using the road/way passing through the Survey respectively to enter their fields/land from the village, and the same was being used past more than 100 years even by the ancestors of the respondents - Appellants started causing obstruction by blocking the road which passes through the middle of the Survey due to which the respondents and other persons who had been using the same road started facing difficulties in entering their lands - Held, Position of law seems to be quite clear - An easement can be acquired by the owner of the immovable property for the beneficial enjoyment of a right by any person in possession of the same - A right of easement is also granted by grant and a grant of such right is presumed from long use or possession although the actual transaction of making such a grant cannot be discovered - To put it in other words, if a party has been using a particular land for a particular purpose from time immemorial, it can be said that he has earned that right on the basis of doctrine of lost grant - There is no period fixed for the immemorial. It would depend on the facts of each case - In the overall view of the matter - Court have reached to the conclusion that the lower appellate court committed no error in passing the impugned judgment and order - Court see no good reason to disturb the judgment and order passed by the lower appellate court in this Second Appeal under Section 100 of the Code - Findings recorded by the lower appellate court, in Courts view, cannot be termed as perverse or erroneous in any manner so as to warrant any interference in a Second Appeal under Section 100 of the Code - Case disposed of. (Para 42, 43)

Judgement Key Points

Case Summary

This is a Second Appeal under Section 100 CPC challenging the judgment of the lower appellate court in Regular Civil Appeal No.21/2014, arising from Regular Civil Suit No.35/2011 for declaration and permanent injunction regarding right of way. (!) [13000280890009]

Parties and Facts

Appellants (original defendants) own Survey No.111 at village Limadhra, Taluka Visavadar, District Junagadh. [13000280890002]
Respondents (original plaintiffs): Plaintiff No.1 owns Survey No.105 paiki 7 (H-1-13-1-A) and paiki 9 (H-1-34-56-A); Plaintiff No.2 owns Survey No.105 paiki 3 (H-7-47-66-A); Plaintiff No.3 owns Survey No.106 paiki 1 (H-1-65-92-A), all at same village. [13000280890002]
Respondents and ancestors used road/way through Survey Nos.122, 109, and 111 (specifically middle of Survey No.111) to access fields for over 100 years; appellants obstructed it, causing difficulties. [13000280890002]
Suit prayed for declaration of right to use way through Survey No.111 and injunction against obstruction or alteration. [13000280890002]

Trial Court Findings

Issues: (1) Whether plaintiffs prove way through Survey No.111 and right to pass? (2) Whether defendants obstructed? (3) Entitlement to relief? (4) Order/decree? (!) (!) (!) (!)
Issues (1) and (2) affirmed; Issue (3) partly affirmed due to alternative western-side way in Survey No.111; decreed right over alternative western road (min. 12 ft wide at defendants' cost), vacated interim order, status quo till appeal. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

Lower Appellate Court

Allowed plaintiffs' appeal, quashed trial court decree, granted full declaration and permanent injunction for original way through Survey No.111 as prayed in plaint para-10. (!) (!) (!)

Substantial Questions of Law

(i) Lower appellate court erred in misappreciating evidence, esp. measurement sheet Exh.142, allowing appeal. (!)
(ii) Erred in not holding alternative way exists (as per trial court), denying easement by necessity through middle of Survey No.111. (!)

Appellants' Arguments

Trial court correctly applied Section 22 Easements Act due to alternative way; plaintiffs cannot insist on middle way when less onerous border way exists. (!) [13000280890011] (!)

Respondents' Arguments

Trial court erred on Section 22; alternative way submerges in monsoon (photos shown); both courts affirmed easement by grant through Survey No.111; alternative plea raised post-evidence. (!) [13000280890013]

High Court's Analysis and Decision

Scope of Second Appeal under Section 100 CPC: Interferes only on substantial question of law; concurrent findings not disturbed unless perverse/no evidence/wrong inference. (!) (!) (!) (!)
Easement defined (Section 4): Right for beneficial enjoyment of dominant heritage over servient heritage. (!) (!)
Kinds (Section 5): Continuous/discontinuous, apparent/non-apparent; right of way is discontinuous/apparent. (!) (!) (!) (!) (!)
Essentials/characteristics: Dominant/servient tenements, different owners, for beneficial enjoyment, defined right. (!) (!) (!) (!) (!) (!) (!) (!) (!)
Acquisition conditions (prescription, Sections 15, etc.): Peaceably, openly, as easement, as of right, uninterrupted, 20 years. (!) (!) (!) (!) (!) (!)
Acquisition by grant (Section 8): Express/implied/presumed from long/immemorial use (lost grant doctrine); no fixed period. (!) (!)
Section 22: Dominant owner exercises right least onerous to servient; confinable to determinate part at servient's request. (!) (!) (!)
Section 23: Dominant may alter mode/place if no added burden (exception for way). (!) (!)
Once defined way by grant exists from long use, servient cannot substitute alternative, even if less onerous; Section 22 applies only if way undefined. [13000280890030][13000280890041]
Here, easement by grant (long/immemorial use >100 years) through specific middle way of Survey No.111; not extinguished by alternative (even if submerges seasonally); trial court erred, lower appellate correct. [13000280890030][13000280890041]
No substantial question of law; findings not perverse; appeal dismissed. [13000280890042]

JUDGMENT

J.B.Pardiwala, J.

This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') is at the instance of the original defendants and is directed against the judgment and order dated 3rd July 2015 passed by the Additional Sessions Judge and 10th (Adhoc) Additional District Judge, Junagadh, in the Regular Civil Appeal No.21 of 2014 arising from the judgment and decree passed by the Principal Civil Judge, Visavadar, dated 11th March 2014 in the Regular Civil Suit No.35 of 2011 filed by the respondents herein - original plaintiffs for declaration and permanent injunction.

2. For the sake of convenience, the appellants herein shall hereinafter referred to as the original defendants and the respondents shall hereinafter referred to as the original plaintiffs.

3. The defendants are the owners of the land bearing Survey No.111 situated at village Limadhra, Taluka Visavadar, District Junagadh. The plaintiff no.1 is the owner of the land bearing Survey No.105 paiki 7 admeasuring H-1-13-1-A and Survey No.105 paiki 9 admeasuring H-1-34-56-A. The respondent no.2 - original plaintiff no.2 is the owner of the land bearing Survey No.105 paiki 3 admeasuring H-7-47-66-A and the respondent no.3 - original plaintiff no.3 is the owner of Survey No.106 paiki 1 admeasuring H-1-65-92-A situated at village Limadhra, Taluka Visavadar, District Junagadh. The respondents had been using the road/way passing through the Survey Nos.122, 109 and 111 respectively to enter their fields/land from the village, and the same was being used past more than 100 years even by the ancestors of the respondents. The appellants started causing obstruction by blocking the road which passes through the middle of the Survey No.111 (appellants' land) due to which the respondents and other persons who had been using the same road started facing difficulties in entering their lands. In such circumstances, the respondents instituted the Regular Civil Suit No.35 of 2011 before the learned Civil Judge, Visavadar, praying for a declaration that the respondents have a right to use the land passing through the Survey No.111 and for permanent injunction against the appellants restraining them from blocking or changing the nature of the way passing through the Survey No.111 which is being used by the respondents.

4. The defendants appeared before the trial court and contested the suit by filing their written statement vide Exh.29.

5. Having regard to the pleadings of the parties, the trial court framed the following issues vide Exh.62.

"(1) Whether plaintiffs prove that way to their land is passing from the Survey No.111 and they have a right to pass from this way ?

(2) Whether plaintiffs prove that the defendants has made obstruction on the disputed way and obstructed them from passing on this disputed way ?

(3) Whether plaintiffs are entitled for seeking relief mentioned in the plaint ?

(4) What order and decree ?"

6. The issues framed by the trial court referred to above came to be answered as under :

"(1) In the affirmative.

(2) In the affirmative.

(3) Partly in the affirmative.

(4) As per final order."

7. Thus, it appears that the trial court recorded the first two issues in the affirmative and the third issue came to be answered partly in the affirmative. Although the first two issues framed by the trial court came to be answered in favour of the plaintiffs, yet the trial court took the view that as there is an alternative root available to the plaintiffs for the purpose of entering into their agricultural fields, the plaintiffs should not insist for using the right of way passing through the Survey No.111, i.e. the land owned by the defendants. The operative part of the order passed by the trial court reads as under :

"ORDER

1. The plaintiff's suit is partly allowed.

2. It is declared in favour of the plaintiffs and against the defendants that the plaintiffs have a right and authority to walk from the alternative road located on the western side in the lan

Click Here to Read the rest of this document