1985 Supreme(MP) 643

IN THE HIGH COURT OF MADHYA PRADESH
J.S. Verma, J.
Ram Krishna Singh – Petitioner
Versus
Ram Sunder – Respondent
S.A. No. 134 of 1980 (J)
Decided On : 01-07-1985

Headnote:(1) Decree – claimed for possession on ground of encroachment – encroachment not found proved – decree cannot be granted.

       (2) Easements Act, 1882 – S. 15 – no averments of easementary right decree on such ground cannot be granted.

        Short Note

       1. The defendant's first appeal to the district Court bas failed and the entire decree of the trial Court bas been affirmed, It is significant that the first appellate Court negatived the plaintiff's case of encroachment by the defendant, which is indeed the foundation of the plaintiff's suit. Thereafter, the first appellate Court recorded a finding that the plaintiff's right of easement had been disturbed, inasmuch as a door and a window of the plaintiff's house opening towards the defendant's house have been obstructed as a result of the construction made by the defendant. On this finding, the trial Court's entire decree, including that for restoration of possession of the strip of land was affirmed.

       Held: It cannot be disputed that the trial Court decree for recovery of possession of the strip of land could not be affirmed by the first appellate Court after it had recorded a clear finding that no such encroachment by the defendant had been proved. That part of the decree is liable to be set aside for this reason alone. Learned counsel for the appellant contends that the suit was based merely on the plaintiff's claim of ownership of the strip of land and encroachment by the defendant over it and not on any right of easement. On this basis, he argues that no decree, on the basis of easement, could be given to the plaintiff, inasmuch as such a decree amounts to granting a relief not even claimed by the plaintiff. Learned Counsel placed reliance on the Supreme Court decision in Chapsibhai v. Purushottam 1972 M.P.L.J. 102 (SC), to contend that even though inconsistent pleas in the alternative, such as right of ownership and right of easement, can be pleaded yet, the essential ingredients for pleading the right of easement have to be pleaded and proved before relief can be granted on the basis of right of easement. An essential ingredient for basing the claim of right of easement is the consciousness that the plaintiff was exercising that right on the property treating it as some one else's property and without pleading and proof of this essential ingredient, no decree can be passed on the basis of right of easement. It is obvious that in a claim based on ownership, this ingredient is bound to be absent and, therefore, the material facts necessary for the purpose of pleading the right of ownership do not by themselves give rise to the alternative claim based on the right of easement. A perusal of the plaint, as it stands after its extensive amendment, clearly indicates that the plaintiff's suit is not based on the right of easement and even the essential ingredients for claiming the right of easement have not been indicated any where in the plaint. Learned counsel for the respondent referred to contents of para 3 of the plaint to contend that the same are sufficient for basing the claim of right of easement. It is sufficient to say that the aforesaid necessary ingredient pointed out, by the Supreme Court i.e. the consciousness, of the right being exercised on some one else's property, is not even remotely suggested in any para of the plaint and even the other ingredients for claiming the right of easement are no where mentioned. The case was fought throughout by the plaintiff on the basis of his claim of ownership of the land and not on the basis of right of easement claimed over the right of the defendant. A close scrutiny of the relief’s claimed in the plaint also indicates that the relief substantially is for removal of the encroachment over the plaintiff's land and for restoration of possession to the plaintiff of the encroached strip of land. This relief flows directly from the claim of ownership and not from the right of easement which has been found by the Court below. The decree cannot, therefore, be sustained on the basis of right of easement, on which alone the decree has been passed by the first appellate Court. Appeal allowed.