Where Easement Act inapplicable, easement rights governed by justice, equity, good conscience; right by gift deed extinguished by changed circumstances providing independent access and causing servient owner inconvenience.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

Heard the learned counsel appearing on behalf of the parties.

2. This appeal has been filed against the judgement dated 14.09.2015 and decree dated 28.09.2015 passed by District Judge, II^nd, Deoghar in Title Appeal No.16/2004 affirming the judgement dated 15.03.2004 and decree dated 29.03.2004/20.04.2004 passed by learned Subordinate Judge, IInd, Deoghar in Title Suit No.127 of 2000.

3. This appeal has been admitted for final hearing by framing three substantial questions of law as contained in order dated 25.02.2019. However, the third substantial question of law was deleted with the consent of the parties vide order dated 29.02.2025.

4. Consequently, only two substantial questions of law survive for consideration which are as follows:

“(A) Whether right of easement has not been properly appreciated by both the Courts considering the factual aspects available in the plaint itself?

(B) Whether right of easement can be said to be applicable though not applicable without giving proper appreciation to justice, equity and good conscience?”

5. Title Suit No.127 of 2000 was filed by the sole plaintiff namely Ganesh Thakur on 11.12.2000 against the sole defendant namely Smt. Sulochana Devi seeking a decree that the defendant is not entitled to obstruct the common passage used and utilized by the plaintiff and also with a prayer for injunction restraining the defendant from obstructing the common passage of the plaintiff and further a direction upon the defendant to remove the materials wrongfully heaped up near the common passage.

6. The entire case of the plaintiff was based on a gift deed executed by his mother in plot no.507A having an area of 334 sq. ft. and the house thereon with one room, one verandah. The gift deed also conferred right to use and utilize common passage, enter into the courtyard and use the staircase to the roof, which is said to be well marked in the sketch map by virtue of the gift deed dated 06.07.1981.

7. The land adjoining to the gifted property was also owned by the mother of the plaintiff, namely, Tara Devi who sold the same on 08.09.1981 to Krishna Devi (her daughter in law) and said Krishna Devi sold the land to the defendant on 17.11.2000 which included the aforesaid passage area meant for right to use under the gift deed. The case of the plaintiff was that the plaintiff enjoyed the passage for 19 years and the defendant had no right to restrict such use. It was his case that the defendant obstructed the plaintiff from using the common passage and entering into the courtyard and using the staircase to reach the roof house of the plaintiff on 18.11.2000 by words. Consequently, the suit was filed.

8. The defendant filed a written statement denying the allegation and the claim of the plaintiff and also alleged that Tara Devi was an illiterate lady and she had no knowledge of the language in which the deed was written and also asserted that the plaintiff had not exercised/used the passage and the staircase even for a single day. It was also asserted that Tara Devi had transferred 925 sq. ft. by way of sale deed to Krishna Devi on 08.09.1981 by registered deed and after purchasing the same, Krishna Devi came in possession. It was also asserted that there is no sign of use