HIGH COURT OF TRIPURA AGARTALA RSA No.45 of 2015 1. Smt. [ENTITY] wife of late [ENTITY] 2. Sri [ENTITY] son of late [ENTITY] [The constituted attorney on behalf of the plaintiff-appellants No.1,3,4,5 & 6] 3. Sri [ENTITY] son of late [ENTITY] 4. Sri [ENTITY] son of late [ENTITY] 5. Smt. [ENTITY] wife of Sri [ENTITY], daughter of late [ENTITY] 6. [ENTITY] wife of Sri [ENTITY], daughter of late [ENTITY] All are residents of Ramnagar Road No.10, Agartala, P.O. Agartala, P.S. West Agartala, District- West Tripura Appellants -Versus- 1. Sri [ENTITY], son of late [ENTITY], resident of Ramnagar Road No.10, Agartala, P.O. Agartala, P.S. West Agartala, District- West Tripura 2. Sri [ENTITY], son of late [ENTITY], resident of Ramnagar Road No.10, Agartala, P.O. Agartala, P.S. West Agartala, District- West Tripura Page 2 of 22 3. Sri [ENTITY] son of late [ENTITY], resident of Ramnagar Road No.10, Agartala, P.O. Agartala, P.S. West Agartala, District- West Tripura Respondents
For the appellants : Mr. [ENTITY], Adv. For the respondents : Ms. [ENTITY], Adv. Date of hearing : 12.06.2018 Date of delivery of : [SECTION].11.2018 Judgment & Order Whether fit for reporting : Yes BEFORE THE HONBLE MR. JUSTICE [ENTITY] & ORDER
This appeal under [SECTION] of the [ACT], which emerges from the judgment dated 31.08.2015 delivered in [CASE NUMBER] by the Addl. District Judge, No.2, West Tripura, Agartala was admitted for hearing on the following substantial questions of law:
(1) Whether the judgment and decree passed by the first appellate court suffers from perversity for consideration of inadmissible evidence and (2) Whether the defendant-respondents can maintain a claim of easementary right and Court can pass a decree declaring easementary right while the defendant-respondents were held to be permissible possessor of the suit property.
Be it noted that the leave was granted in the exceptional manner by the order dated 05.01.2016, whereby those substantial questions of law were framed, to raise the further substantial questions of law at the time of hearing. [2] It is apparent that which evidence is inadmissible has not been specified while framing the substantial questions of law. For purpose of appreciation of the challenge in this appeal, the relevant fact may briefly be introduced at the outset.
The plaintiff-appellants instituted the said suit for declaration of the right, title and interest over the suit land as described in the schedule-B of the plaint and for confirmation of their possession over the said land along with the consequential relief of perpetual injunction against the defendant-respondents No.1 & 2. To be precise, the plaintiff-appellants urged for the perpetual injunction restraining the defendant-respondents No.1 & 2 from entering into the suit land which is a path way according to the plaintiff-appellants and described in the schedule-B of the plaint. For purpose of further reference, the schedule-B from the plaint is extracted hereunder:
SCHEDULE B (SUIT LAND) Within District- West Tripura, Mouja-Agartala, Sheet No.1, Tehshil- Sadar West T.K., Touji No.158, Sub- Division and Revenue Circle- Sadar, land appertained in finally published Jote [ENTITY] No.928, old C.S. Plot No.600(P), at present [CASE NUMBER], path measuring 0050 satak, butted and bounded by:
North : C.S. Plot No.1673 (Plaintiffs) South : C.S. Plot No.1675, Road; East : Road; West : C.S. Plot No.1681;
Within this boundary land measuring 0050 satak.
[3] The principal defendant-respondents, hereinafter referred to as the defendant-respondent or the defendant, by filing the written statement had asserted that on 21.12.1986 an agreement was made between the predecessor of the plaintiffs and the father of the defendant for giving limited right of use of the said path way for purpose of easement. It would be apposite to reproduce the relevant part of the written statement in this regard.
"Moreover it is recorded in the [ENTITY] No.434 that the suit land is a path way where the defendant opposite party is maintained his right to easement as has come into existence vide the agreement dated 21.12.1986. It is also mention that in column No.24 of [ENTITY] No.928 the suit land is recorded as path way which is used by the occupier of the adjacent land."
[4] In the plaint it has been asserted by the plaintiffs that the defendant's house is situated with 'the intervention of 3[three] houses from the suit land though he has no right, title and interest to use the land of [CASE NUMBER] because there is an alternative path way, passage already existing upon the land of C.S. Plot No.1675 and wherefrom easily vestible to ingress and egress in the house of the defendant without touching the suit land. But unnecessarily, he is trying to create the problem and also trying to grab the suit land of the plaintiffs. Therefore, he denied the title of the plaintiffs upon the land of [CASE NUMBER].' [5] In response to the said claim, the defendant has categorically denied that on spot verification the land of the predecessor of the plaintiffs was demarcated from the purported government khash land which is treated as the public path way and recorded in the record of rights on the southern side of [CASE NUMBER]. The defendant-respondent has denied the allegation of collusion. When the plaintiff-appellants obstructed the use of the schedule-B land, which will be referred hereinafter as the disputed path way, the defendant-respondent approached the Deputy Collector on 02.06.2008 for his intervention. On the basis of the inquiry conducted by the Deputy Collector and on appreciation of the records and the respective submissions of the disputant parties, the plaintiff-appellants were directed to remove the obstruction and open the bamboo fencing which they had erected to stop movement over the disputed path way. Hence, the defendant- respondent denied that he has no right to use the said disputed path way. By denying the claim of existence of an alternative path way, the defendant-respondent has categorically stated that there exists no alternative path way for easement from his residential plot and he has no intention to grab the land as apprehended by the plaintiff-appellants. The defendant-respondent in the statement has denied that there is any machination or collusion for recording his name in column No.24 of [ENTITY] No.434 [record of right] in respect of the disputed path way. The defendant-respondent has claimed that the said path way has been used for more than 20 years and there is no alternative path way for easement from his homestead [residential] land. Based on the rival claims as many as 6[six] issues were framed for adjudication of the suit including whether the plaintiff-appellants were entitled to a decree of perpetual injunction restraining the defendant-respondent from using the disputed path way.
[6] The trial court denied to accept the agreement dated 21.12.1986 executed by [ENTITY], the predecessor of the plaintiff-appellants and the proforma defendant as the instrument of transfer of any right as the same was not registered having referred to [SECTION] of the [ACT]. Even the trial court has denied to admit that instrument dated 21.12.1986 in the evidence. The trial court has observed as follows:
"Therefore, admittedly, in the case in hand, the agreement dated 21.12.1986 is not a registered document for which the said document cannot affect immovable property i.e., the suit land by way of sale."
[7] The trial court, later on, has proceeded to explain whether the principle of [ACT] can be applied having due regard to the justice, equity and good conscious and relied on a decision of the Gauhati High Court in [PRECEDENT] and held that the principle of [ACT] can be applied in the State of Tripura, even though the Act is not extended to the State of Tripura at any point of time. The trial court has proceeded to explore whether any right to use of the disputed path way has been consolidated in terms of [SECTION] of the [ACT] which provides that where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years and so on. It has been also provided that right to such access shall be absolute if it is established that on easement, without interruption was accessed for 20 years. However, in the case of the government land that period would be 30 years. The trial court has on appreciation held that even the defendant- respondent could not establish the easement of necessity as provided in [SECTION] of the [ACT] and the said finding has been returned on observing that 'I am of the view that if easement right is already accrued or if the suit path was already had been using by the vendor of the defendant than there was no requirement for the father of the defendant for entering into an agreement with the predecessor of the plaintiffs and proforma defendant for using the suit path. Thus, in my view, the plea of the defendant that vendor of the defendant also used the suit path before purchase of the land of the defendant, is not believable, for which, I find the defendant also cannot acquire quasi easement under [SECTION] of the [ACT] over the suit path.' Further, the trial court has observed in the same judgment dated 05.01.2013 that from Ext.6, the order passed in [CASE NUMBER]; Ext.7, the notice issued by the Deputy Collector, Ext.8, the [ENTITY] No.1, Ext.9, [ENTITY] No.1/1 and Ext. the map it surfaces that there is a government path way near the suit path appertaining to the land of plot No.1675. Thus, it has been held that there is a government path way i.e. alternative path way besides the suit path. But while determining the element of possession the trial court has strangely observed that the defendant-respondent 'did not take the plea that the suit path way is under exclusive possession of the defendant but it is the plea of the defendant that the suit land is in possession of the defendant and other land owners and PW-1 Sri [ENTITY] deposed by examination in chief that the suit path is using [sic] by plaintiffs. Therefore, I find the suit path is possessing by the plaintiffs and the plaintiffs also using the suit path along with other local people including defendant. From, Ext.12 & Ext.B the [ENTITY] No.928, I find the suit path is a road usable by nearby plot holders and, admittedly, the plaintiffs are also nearby plot holders, for which, it can be said that the plaintiffs are using and in joint possession over the suit path along with others.' [Emphasis added] Even thereafter the trial court has inferred that mere use of the suit path by the defendant along with the plaintiffs for long time cannot be said to be a fact wherefrom a right to sue can accrue. It has been observed that the cause of action accrued on 11.12.2008 when the SDM had directed the plaintiffs not to exercise the exclusive possession over the disputed path way. Hence, the suit was found to have been filed within the period of limitation. Finally, the suit was decreed restraining the defendant - respondent from entering into the disputed path way. [8] The defendant-respondent being aggrieved by the said judgment dated 05.01.2013 preferred an appeal under [SECTION] of the [ACT] in the court of the District Judge, West Tripura, Agartala being [CASE NUMBER] which was in the course of time transferred to the court of the Addl. District, No.2, West Tripura, Agartala. The first appellate court by the judgment dated 31.08.2015 which has been challenged in this appeal revisited the evidence and reversed the finding of the trial court holding as under:
"7. In this regard I like to refer decision of the Apex Court reported [PRECEDENT]-wherein the Apex Court in Para 24 held as follows:
24. in our view, therefore, the High Court was also fully justified in holding that there was implied grant of B schedule property path way, which can be inferred from the circumstances for the reason that no other path way was provided for access to A schedule property of the plaint and there was no objection also to the use of B schedule property of the plaint as path way by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose In the case in hand, it is established that defendant- appellant has been using the [SECTION] land as path way and there is no other path way suitable for excess to his own land, so by continuous use of B-Schedule land as path way he has established a right of enjoyment over the B-Schedule land on for ingress and egress to his house as he has got no other alternative way to enter into his house. So, the right of use of B- Schedule land as path way by the appellant-defendant cannot be restricted. It is true that on record, the suit path described in the [SECTION] of the plaint, is recorded in the name of [ENTITY], i.e. the predecessor of the plaintiffs and the plaintiffs title over suit land is established. But due to prolong use of the schedule-B land and a path way being the only entrance of his house, the defendant-appellant has right to enjoy over the B-schedule cannot be injuncted, as such the plaintiff respondent are not entitled to get a decree of perpetual injunction restraining the defendant appellant from entering and using the schedule-B land as his path way.
8. As such, in modifying the judgment and order dated 05.01.2013 passed by the Learned Civil [Judge] (Jr. Division) Court No.1, Agartala, it is hereby ordered that the plaintiff-respondent is entitled to get decree with declaration that he has right title over the schedule B land of the plaint, but he is not entitled to get any decree for perpetual injunction restraining the defendant-appellant from entering into the [SECTION] land or to use the land as his sole path way."
[9] Mr. [ENTITY], learned counsel appearing for the plaintiff-appellants has submitted that the finding of the first appellate court is wholly erroneous and without appreciation of the evidence in the perspective of the dispute. According to him, the finding that the disputed path way is only means of easement from the house of the defendant-respondent is contrary to the records inasmuch as there exists on alternative path way for the same purpose. Mr. [ENTITY], learned counsel has pressed hard to show that from the settlement map [Exbt.15, 4 sheets] it can be gathered that there is an alternative path way for easement of the defendant-respondent. That apart, Mr. [ENTITY], learned counsel has submitted that the defendant has failed to establish that the said alternative path way as curved out from the government land will not serve the purpose of easement. The disputed path way is covered by R.S. Plot No.1678 under [ENTITY] No.928 of Mouja- Agartala Sheet No.1 which was closed by the plaintiff-appellants by constructing the bamboo fencing. From the map, Mr. [ENTITY], learned counsel made an endeavour to demonstrate that the alternative path way exists on R.S. Plot No.1675 and thus, the defendant-respondent cannot claim the necessity of easement. However, Mr. [ENTITY], learned counsel has further submitted that in the [ENTITY] it has been recorded that the said path way is under use of the possessor of the nearby plots. Mr. [ENTITY], learned counsel has contended that in the face of the records, it is apparent that the finding returned by the first appellate court is abrupt against the persuasive analogy of the trial court. He has also taken this court to the evidence as recorded by the trial court where the one of the plaintiffs, namely [ENTITY] [PW-1] has deposed that for deleting the words as recorded under column No.24 of the record of right he has filed an application under [SECTION] of the [ACT]. Neither PW-1 has stated about the outcome of the proceeding nor any record has been so produced in the trial even though PW-1 has testified. But it is noted with surprise that he has not proved the basic facts by affidavit. The deposition as submitted under [SECTION] of the [ACT] is not only sketchy but even does not support the pleadings. However, in the cross-examination, he has stated as follows:
"The front side of my house is towards the eastern side. The suit land is situated in the southern side of my house. It is not a fact that the defendants are using the suit land for their ingress and outgress. I have tried to fence over the suit land with bamboo. When I have tried to give fencing over the suit land the defendant given an application to the Deputy Collector and Magistrate, Revenue Circle, Agartala, Tripura West. I have not submitted any agreement dated 21.12.1986 before the court of SDM, Sadar. There was a signature in the said agreement of mine as a witness. It is not a fact that on the basis of that agreement the defendant used to use the suit land. In [ENTITY] No.434 which his issued on later which is in the draft stage it is mentioned that the suit land is in possession of the defendant as permissive possessor. In [ENTITY] No.928 it is mentioned that the suit land is usable by the persons residing in the adjacent place. The house of the defendant is situated in the western side after one house of my house. The defendant never disturbed me in using the suit land. [ENTITY] is my younger brother. [ENTITY] was another witness of the said agreement. I have not filed any suit to declare the suit land in my name. It is not a fact that my statement as to the fact that the suit land is my private path, wherefrom we are entering into the dwelling houses, is not true. The interim order was passed by the SDM for demolishing fencing given by me in the boundary of the suit land for using the said land by the defendant as path. The defendants are not possessing the suit land for so many years. My father never executed any agreement with the defendant. My father has taken Rs.1500/- at the time of execution of document, dated 21.12.1986 from defendant and another person [ENTITY]. No injunction order is passed by this court. I have not made defendant as a party in the case U/[SECTION] of [ACT]. The persons residing in the western side of my house are not using the suit land as their path. It is not a fact that the vendor of the defendant also used to use the suit land as path. It is not a fact that as to the fact of my chief, the defendant is man of desperate in nature, is not true. The tenants of the defendants are residing now over the suit land. I have demolished the bamboo fencing given by me after passing the order of the court. It is not a fact that the document dated 21.12.1986 was executed by my father so that the defendant cannot be disturbed. It is not a fact that to harass the defendant I have filed this suit. The defendant never denied my title in respect of the suit land."
[10] It is apparent from the cross-examination that there was an agreement dated 21.12.1986 where even PW-1 had signed as the witness. However, the content of the said agreement has been denied. Even PW-1 has candidly admitted that the defendant- respondent never disturbed then in using the suit land. He has even denied to have filed the suit for declaration of title in respect of the disputed path way. The statement of PW-1 in the cross- examination is so incoherent that in the subsequent part he has stated that the tenants of the defendant are residing over the suit land.
[11] Ms. [ENTITY], learned counsel has vehemently submitted that the easementary right has been consolidated in favour of the defendant-respondent. In this regard, she has referred to the order dated 03.02.1976 issued by the Revenue Inspector where it has been recorded that the homestead land of [ENTITY] is in existence, of which there is no entrance and as such, Sri [ENTITY] has to enter in his house on the mercy of the others and a passage is essentially necessary for him. In that perspective, by the order dated 16.02.1976 [part of Exbt.6] [ENTITY] and [ENTITY] were directed to vacate their possession from the suit path within 15 days. Ms. [ENTITY], learned counsel has pointed out that the records of right cannot be wished away as the records evolved on the basis of the field survey and there is no evidence to rebut the presumption of correctness. Having considered those orders as referred, it is apparent that in the year 1996, 20 years crossed of use of the said disputed path way. Ms. [ENTITY], learned counsel has further submitted that there is no pleading or evidence in respect of the alternative path way which can be identified from the document, or showing that the said 'path way' provides alternative easement as recorded in the C.S. Plot No.599 of [ENTITY] No.1-1 corresponding to C.S. Plot No.1675 as stated earlier. The land of the defendant is pertained to [CASE NUMBER] and R.S. Plot No.1691 of [ENTITY] No.5 of Mouja-Agartala, sheet No.1, measuring 0.0650 acres. There is no dispute that the disputed path way connects the land of the defendant-respondent and the main road. The question, therefore, emerges whether the path way as recorded in R.S. Plot No.1675 corresponding to the old plot No.599 pertaining to [ENTITY] No.1/1 of Agartala Sheet No.1 provides the easement to the defendant-respondent. The defendant-respondent has categorically stated that there is no alternative path way or passage from his land as stated above. The defendant and his family members have been using the disputed path way for more than 20 years. [ENTITY], his predecessor, as stated earlier has been using the path way earlier, at least since1976. Moreover, in the cross-examination, the defendant- respondent has stated as under:
"I do not know about the fact of filing of any [CASE NUMBER] by the government and recovery of the land of plot No.599 and making of road for the people of the locality and by a decision passed in 1976 a public road was created thereon. There is not road in the southern side. It is not a fact that in the southern side of the suit land there is a road. It is not a fact that we tried to possess the suit land forcibly and due to the resistance given by the plaintiff we failed to do so. It is not a fact that the agreement dated 21.12.1986 is not related with the suit land. [ENTITY] No.928 is in the name of [ENTITY]. The land of all plots of [ENTITY] No.928 is recorded in the name of [ENTITY]. It is not a fact that the mentioning in column No.24 of [ENTITY] No.928 against the plot No.1674 as to the fact that usable by person of the nearby plots, is not true."
[12] Mr. [ENTITY], learned counsel appearing for the plaintiff-appellants has relied on a few decisions of the apex court in respect of easementary right or claim based on necessity of easement. Apart from placing reliance on a decision of the Gauhati High Court which has observed that even in a second appeal the High Court may interfere, when the first appellate court reverses the order of the trial court without reading the entire evidence and without taking into account the documents. Before this court embarks on referring the decision in respect of easement, let the relevant passage from the decision of the Gauhati High Court in Dharmeswar Roy vs. Putul Chandra [ENTITY], reported (2017) 3 GLR 577 be reproduced:
"14 The High Court in a Second Appeal under [SECTION] of the [ACT] can interfere with the finding of the learned First Appellate Court only when the First appellate court reverse the order of the trial court without reading the entire evidence and without taking into account the document.
15. The Apex Court in [PRECEDENT] held that the High Court testified in interfering with the judgment of the learned First Appellate Court when the First Appellate Court reverse the finding of the trial court without reading entire evidence taking into account documents necessary for giving a finding on the issue. Para No.14,15,16 and 17 of the Case reported in [PRECEDENT] (supra) read as follows:
14. The judgment cited by the learned senior counsel for the respondent on the scope of [SECTION] [ACT] are apposite in the circumstances of this case. In [PRECEDENT], this court while considering the scope of [SECTION] [ACT], observed thus: (p.454 para.8) It will, thus, be seen that the first appellate court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire document on the basis of which the finding was recorded, the High Court was, therefore, justified under [SECTION] of the [ACT] to set aside the finding.
15. In [PRECEDENT] again this court while considering the scope of [SECTION] [ACT] held as follows: (SCC pp. 712-13, para 5) it is true that the High Court while hearing the appeal under [SECTION] of the [ACT] has no jurisdiction to reappraise the evidence and reverse the conclusion readied by the first appellate court, but at the same time its power to interfere by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises, the court is under a duty to examine the entire relevant evidence on record and if it is refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorized to set aside the finding.
16. To the same effect, another judgment of this court in [PRECEDENT] this court observed as follows : (SCC p. 535, para 3) 3. A perusal of the impugned judgment of the High Court shows that there were good reasons for treating the finding on the question of possession recorded by the first two courts to be vitiated. Apart from the reasons given by the High Court, it appears to us that ignoring some of the documents which were vital for deciding the question of possession also vitiated the finding on the question of possession recorded by the trial court as well as the first appellate court. "
In respect of this proposition and of the settled position of law, no controversy has been raised by either of the parties in this appeal. Hence, no further elucidation is called for. [13] In [PRECEDENT], the apex court has observed in a different facts-situation, where it has been established that despite having an access by a path way a claim was further pressed on the foundation of necessity of easement. Hence, the apex court had occasion to observe that since there was an access to the another path way the claim cannot be acceded and the apex court has observed as under:
" If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years "
[14] Mr. [ENTITY], learned counsel has placed his further reliance on another decision of the apex court in [PRECEDENT], where the apex court has observed in another fact-situation which primarily deals with pleadings and proof in respect of acquisition of the easementary right. The following passages have some relevance to comprehend the general ambit of easement and how to plead and prove against the servient right to easement:
"19. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right.
20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence.
15. A right of easement can be declared only when the servient owner is a party to the suit. But nowhere in the plaint, the plaintiffs allege, and nowhere in the judgment, the High Court holds, that the first or second defendant is the owner of the suit property. While concluding that the plaintiffs were not the owners of the suit property, the High Court has held that they have a better right as compared to the first defendant and has also reserved liberty to the plaintiffs to get their title established in a competent court. This means that the court did not recognize the first defendant as the owner of the suit property. If the High Court was of the view that defendants were not the owners of the suit property, it could not have granted declaration of easementary right as no such relief could be granted unless the servient owner is impleaded as a defendant. It is also ununderstandable as to how while declaring that plaintiffs have only an easementary right over the suit property, the court can reserve a right to the plaintiffs to establish their title thereto by a separate suit, when deciding a second appeal arising from a suit by the plaintiffs for declaration of title. Nor is it understandable how the High Court could hold that the apart from plaintiffs, other persons living adjacent to and north of the suit property were entitled to use the same as passage, when they are not parties, and when they have not sought such a relief."
[15] Both Mr. [ENTITY], learned counsel appearing for the plaintiff-appellant and Ms. [ENTITY], learned counsel appearing for the respondents have placed their reliance on a decision of the apex court in [PRECEDENT], where the apex court has culled out the law in the following manner:
"Since we have accepted the findings of the High Court as well as of the trial court on the question of implied grant, it would not be necessary for us to deal with the decisions on the easement of necessity which necessarily involves an absolute necessity. If there exists any other way, there can be no easement of necessity. Therefore, the decision of this Court in [PRECEDENT] is clearly not applicable in view of our discussions made herein above. Similarly two other decisions referred to by the High Court in the impugned judgment need not be discussed because these decisions were rendered on the question of easement of necessity."
[16] The incidents of easement has been dealt in [SECTION] of the [ACT]. [SECTION] clearly provides that an easement must not use for any purpose not connected with the enjoyment at the dominant heritage. To further explain the provision, two illustrations were provided below [SECTION] in the following manner:
"(a) A, as owner of a farm Y, has a right of way over Bs land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z.
(b) A, as owner of a certain house, has a right of way to and from it. For the purpose of passing to and from the house, the right may be used, not only by A, but by the members of his family, his guests, lodgers, servants, workmen, visitors and customers; for this is a purpose, connected with the enjoyment of the dominant heritage. So, if A lets the house, they may use the right of way for the purpose of collecting the rent and seeing that the house is kept in repair.
[SECTION] and [SECTION] of the said Act provides that the dominant owner must exercise right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage. Such exercise shall, at the request of the dominant owner, be so confined. Even though this provision has its root to the contract but when the heritage is created the same principle can be applied. However, the servient owner can alter the mode and place of enjoying the easement, provided that he does not thereby impose additional burden on the dominant heritage. From the various documents, in exclusion of the document dated 21.12.1986 which was not even admitted, this court is in a position to infer that the disputed path way is the only easement for the defendant. Even the report of the Revenue Inspector submitted in terms of the order dated 30.01.1996 [Exbt.6] shows that the predecessor of the defendant, namely [ENTITY] had no other easement except over the disputed path way. In the said report [Exbt.6] it has been clearly observed that the predecessor of the defendant has no other easement from his land. Finally, by the order dated 16.02.1976 the Deputy Collector, Sadar had directed the predecessor of the plaintiff-appellants to vacate their possession from the disputed path way. In terms thereof, the warrant [Exbt.7] was issued. In the order dated 16.02.1976 it has been clearly observed that the disputed path way is 'essential for road purpose for having road connection with house of [ENTITY]'. On that premises, the warrant for vacation was issued by the Deputy Collector, Sadar. No record has been placed in the evidence to show that the said order was modified or recalled. Thus, the heritage is well proved by the defendant and it is an admitted fact that in the finally published [ENTITY] [Exbt.12] against the said disputed path way [[CASE NUMBER]], the following entry under column No.24 has been recorded:
"Used by the possessor of nearby plots".
The plaintiffs have clearly admitted that the plot of the defendant is just after one intervening plot from their plot. Even though the agreement which the defendant has relied could not be admitted. Despite his attempt to get the said agreement dated 21.12.1986 admitted by approaching this court, but he failed in his venture, however, as stated before, the existence of such agreement has been proved by the statement of PW-1 made in the cross-examination, where he has admitted that there was a signature on the said agreement of his as the witness. Thus, the narrative of the defendant as projected that the said path way was being used as the easement has been squarely proved. The trial court in his anxiety has given an approach which is no less than a pedantic and erroneously observed as follows:
"Therefore, I find, admittedly it is the plea of the defendant that the defendant has been using the suit path under an agreement by payment of money and, for which, the defendant cannot acquire easement right by prescription over the suit path as because no easement can be acquire by payment of money as easement is a right accrued to one person by using the land of others and not by payment of money. Therefore, in my view t he defendant cannot acquire any easement right by way of prescription over the suit path."
While adopting a doctrinaire approach, the other evidence as surfaced in the records was not appreciated by the trial court. Even the trial court has erred in determining the burden of proof. The primary burden of proving that there is an alternative easement having not discharged by the plaintiffs to the hilt, the trial court has unwaveringly gone to declare the plaintiff's absolute right over the disputed path way. From the examination-in-chief, this court has failed to locate any statement in respect of existence of the alternative path way connecting the plot of the defendant to the main road [see the deposition of PWs-1 & 2]. Hence, the finding as returned in this regard by the trial court is affected by gross non-appreciation. In the judgment of the first appellate court though there is no elaborate discussion over that aspect of the matter but he has recorded that the disputed path way is not under the exclusive possession of the plaintiff-appellants as it has been used as the path way by the neighbourhood people even though the agreement dated 21.12.1986 could not be brought in the evidence but he has correctly observed that existence of such document cannot be denied. Even referring to the evidence led by the plaintiff-appellants, the first appellate court has observed that the plaintiffs could not succeed in proving that there is no heritage of easement. An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity of it i.e. when the property cannot be used at all without the easement and not merely it is necessary for its reasonable or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity if has he has no other means of access to his land, however, more inconvenient it may be then by passing over his neighbour's land. Hence, it follows that an easement of necessity is not to be granted merely on the ground of convenience and advantage but solely on the ground of absolute necessity when there are other ways of ingress and egress exist, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient. The right of way as easement of necessity implies that there is no other means of access. If an alternative way exists, no question of necessity arises. In this case, the plaintiff-appellants have failed to prove the existence of an alternative path way to demolish the claim of the defendant of absolute necessity of easement.
[17] In this regard, the decision of the apex court in [PRECEDENT] (Minor) vs. Seshammal, reported in AIR 2006 SC 2[SECTION]4 may be referred. In [PRECEDENT] (supra) it has been held, inter alia, as under:
" An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in [SECTION]. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and [SECTION] is not applicable in such case."
[18] Having observed thus, this court does not find any infirmity in the finding returned by the first appellate court and in the result, this appeal stands dismissed.
Before parting, this court is persuaded to observe that right to easement is a limited right subject to what has been observed in [SECTION] of the [ACT]. It does not create any right of possession absolutely except the right of easement. For no other purpose, the said right can be exercised. The right of easement is a variable right when, even in future, the alternative easement is created the servient owner can alter the relation either amicably or by intervention of the court of the competent jurisdiction.
Prepare the decree accordingly.
Send down the LCRs thereafter.
JUDGE [ENTITY]