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2006 Supreme(Gau) 166
IN THE HIGH COURT OF GAUHATI
B. BISWAS, J.
Monwar Ali and Ors. – Appellant
Vs.
Mustt. Rayachan Bewa and Ors. – Respondent
S.A. No. 68 of 1998
Decided On: 21.02.2006
Advocate Appeared
For Appellant/Petitioner/Plaintiff: D.C. Mahanta and T.J. Mahanta, Advs.
For Respondents/Defendant: N. Dhar, P.B. Mazumdar and T. Dhar, Advs.
The judgment establishes the principle that a transferee of immovable property may be entitled to the right of easement over other immovable property of the transferor if it is necessary for enjoying the transferred property, as provided under Section 13 of the Indian Easements Act, 1882.
Headnote:
EASEMENT - Necessity - Indian Easements Act, 1882, Section 13
Fact of the Case:
The plaintiff filed a suit for declaration of right of easement over a path and for permanent injunction. The defendants contested the suit, denying the plaintiff's use of the path and alleging the use of a different path. The Trial Court dismissed the suit based on the law of limitation, while the First Appellate Court decreed the suit in accordance with Section 13 of the Indian Easements Act.
Finding of the Court:
The First Appellate Court decreed the suit, recognizing the plaintiff's right of easement by necessity over the disputed path, as provided under Section 13 of the Indian Easements Act.
Issues: The issues included the maintainability of the suit, cause of action, mis-joinder of parties, obstruction of the plaintiff's right to use the path, and the applicability of the law of limitation.
Ratio Decidendi: The Court found that the plaintiff established a case of easement by necessity under Section 13 of the Easements Act, as the disputed path was necessary for effective use of the plaintiff's property.
Final Decision: The appeal was dismissed, affirming the First Appellate Court's decree in favor of the plaintiff.
D. Biswas, J.
1. This appeal is directed Q against the judgment dated 30-5-1998 passed by the learned Civil Judge (Sr. Divn.), Dhubri in Title Appeal No. 11/97 whereby Title Suit No. 248/88 has been decreed in reversal to the judgment of dismissal passed by the learned Civil Judge (Jr. Divn.) No. 2, Dhubri.
2. The appeal was admitted by the order dated 3-8-1998 for hearing on certain substantial questions of law. On 2-2-2005, the questions formulated earlier have been recast and the substantial question of law formulated for adjudication in this Second Appeal, after hearing the learned Counsel, for the parties is as below:
Whether the plaintiff/respondent could establish a case for decree of the suit declaring their right of easement of necessity over the suit path as provided under Section 13 of the Indian Easements Act, 1882?
3. I have heard Mr. D. C. Mahanta, learned senior counsel for the appellants and Mr. N. Dhar, learned Counsel for the respondents.
4. The respondent herein as plaintiff filed the aforesaid Title Suit for declaration of right of easement over a path described in the schedule to the plaint and for permanent injunction. Their case before the Trial Court was that they had purchased a plot of land measuring 2 katha 10 lechas from the defendant Nos. 1 and 2, namely, Md. Meher Ali Sk. and Mustt. Meherban Bibi in the year 1975 by a registered sale deed No. 8633. The land so purchased appertains to Dag No. 291 of Khatian No. 28 of village Jhagrapar Pt. III. The respondent after taking over possession, constructed residential house thereon and also got her name mutated. The dispute started when the vendors sold a part of their land property to defendant No. 4 Sahed Ali Khandkar who along with defendant No. 5 Md. Awal Sk. constructed their residential houses in the plot purchased by them. The PWD road from Dhubri to Goripur is on the eastern side of the residential premises of the plaintiff as well as the defendants. The link road from the house of the plaintiff to the P. W. D. road measures about 75 feet in length and 6 feet in breadth. It is on the eastern boundary of the premises of the defendant No. 1 and others. This road is the only link road from the residence of the plaintiff to the P. W. D. road, there being no other alternative' path. This path has been described in Schedule-F. The plaintiff was given the right of easement of necessity to use this path and in pursuance thereof she has been so using the path till the defendant Nos. 1, 2 and 3 suddenly constructed a thatched house in the middle part of the path blocking the passage. Hence the suit was filed for the reliefs indicated above.
5. The defendants contested the suit by filing written statement wherein the allegations made have been denied. Apart from various legal pleas, it is averred that the plaintiff never used any passage over the F-Schedule land as claimed. According to them, the plaintiff had been using a different path since long time back for approach to the PWD road and this path runs through the land, of one Elapuddin, Maser Sk. and Futali Bewa.
6. Upon pleadings, the learned Trial Court framed the following issues:
1. Whether the suit is maintainable in its present form?
2. Is there any cause of action for the suit?
3. Whether the suit is bad for mis-joinder of parties?
4. Whether defendant Nos. 1, 2 & 3 have illegally constructed thatched house over the schedule 'F' land and thereby cause obstruction in the lawful enjoyment of the plaintiffs right to use the land as alleged?
5. Whether the suit is barred by law of limitation?
6. Whether the plaintiff is entitled to get decree as prayed for?
7. Before the Trial Court the plaintiff examined three witnesses in respect of her case whereas the defendants examined four witnesses. The learned Civil Judge (Jr. Divn.) dismissed the suit on the ground that the plaintiff had been using the passage for thirteen years whereas the law relating to easementary right by way of prescription requires user for
