THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.428 of 2010 Date:01.2.2011 Between: Shaik Khasim @ Pala Khasim (died) Shaik Babu and others. ………..Appellants/defendants. And Shaik Mohiddin Bee and others. ………Respondents/plaintiffs. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.428 of 2010 JUDGMENT: The Second Appeal is directed against the judgment dated 17.3.2010 passed in A.S.No.242 of 2007 on the file of the Court of VI Additional District Judge, Markapur, whereby and whereunder the learned Additional District Judge has reversed the judgment dated 7.8.2006 passed in O.S.No.137 of 1999 on the file of the Court of the Junior Civil Judge, Giddalur. 2. The appellants herein are the defendants in the original suit. The parties will be referred as they are shown in the original suit for the sake of convenience. 3. The plaintiffs filed the suit for declaration of easementary rights and for consequential permanent injunction and also for mandatory injunction directing the defendants to remove the encroachments, and the bunk etc. 4. The brief facts of the case are as follows: The 1st plaintiff and her husband purchased the plaint plan marked ‘BNMC’ vacant site of 9 cents in Sy.No.179/1 of Giddalur Village limits on 4.12.1978 under a registered sale deed and subsequently constructed their house. The husband of the 1st plaintiff died intestate about 12 years back. Therefore, the 1st plaintiff and her two sons i.e., the plaintiffs 2 & 3 constructed a double storied house in five portions and since the time of their purchase of the said site, they have been using the rastha shown in ‘ABCDEFGHJ’, which is 12 feet width, formed by their vendors at the time of dividing the land into plots about 50 years ago. The plaintiffs and their predecessors used to pass through the same rastha and the suit schedule rastha has been clearly shown in their sale deed. It is also their case that the defendants 1 to 4 purchased ‘FKLG’ site and that the defendants 2 & 3 are the sons of the 1st defendant and the 4th defendant is son-in-law of the 1st defendant and that the 4th defendant has constructed a bunk, partly encroaching the rastha shown in ‘ABCDEFGH’. They have also encroached into the rastha and put up a foundation pillar in the rastha near ‘F’ point. The plaintiffs approached the police and the Revenue Authorities, and though the Police have visited the locality and asked the defendants to stop construction, but the defendants being influential powerful people have made all preparations and informed that they would encroach the rastha and block it. If the rastha is blocked, the plaintiffs have no other alternative rastha for passage of carts, yokes and their right of easement will be defeated. The 1st defendant filed a written statement denying the averments made by the plaintiffs but however admitted that the 4th defendant had kept a bunk. It is however denied that the defendants are encroaching into the rastha and had put up a foundation pillar in the rastha near ‘F’ point. It is further averred that plaintiffs have no cause of action to file the suit and that they are not entitled for any relief. It is also their case that the plaintiffs’ houses are in Government site, and therefore, the Government of A.P., is a necessary party. 5. The trial Court framed necessary issues and main issues are: (i). Whether the plaintiff is entitled for declaration of easementary right and consequential permanent injunction as prayed for? (ii) Whether the plaintiff is entitled for mandatory injunction as prayed for? 6. On behalf of the plaintiffs, P.Ws.1 to 5 were examined and Exs.A1 and A2 were marked. On behalf of the defendants, D.Ws.1 to 7 were examined and Exs.B1 and B2 were marked. 7. The trial Court came to the conclusion that Ex.A1 is the registered sale deed, dated 14.12.1978, under which the site was purchased by the husband of the 1st plaintiff and that recitals of Ex.A1 go to show that there is a rastha with 8 muras width from North to South towards east of the compound wall of Devasahayam for taking carts, yokes and men to the site purchased by the plaintiffs and that for ingress and egress of the men, the rastha located in front of the kottam of Shaik Saidmia towards south has to be used. Thus, the learned Junior Civil Judge came to the conclusion that it is clear from the recitals filed in Ex.A1 that the schedule rastha is used for taking carts, yokes and men, and southern rastha is meant for ingress and egress of the men and that since the plaintiffs have no carts and they never used a four wheeler or at least a cycle and therefore, the suit Rastha (way) is not in their actual enjoyment. On the issue of right of easement of necessity, it is held that since there is a rastha in front of kottam of Shaik Siadmia for passage of men and i.e., an alternative rastha is available to the plaintiffs, therefore, they cannot seek for right of easement of necessity. However, the learned Junior Civil Judge observed that the Rastha in front of kottam of Shaik Saidmia is a narrow one and not convenient for taking carts, yokes and bullock carts etc. 8. The learned District Judge referring to Ex.B2-registered gift deed filed by the defendants and holding that the recitals of Ex.B2 itself shows the existence of rastha as contended by the plaintiffs and therefore, there is no doubt about the existence and use of the said rastha. 9. The learned District Judge further observed in paragaph No.12 of the judgment is as follows: “In fact there is reference in the recitals of Ex.A1 regarding description of the rastha with 8 muras width North to Sought and it is located towards East of the compound wall of Devasayaam for taking carts, yokes and men to the schedule site mentioned therein. In Ex.A1 itself there is reference to another second rastha for ingress and aggress of men passing in front of the kottam of Shaik Saidmia towards south. Unfortunately by referring to stray statement elicited in the cross- examination of P.W.1 that they have no carts, yokes and bullocks at any point of time, the lower Court doubted the version of the plaintiffs that they are using the rastha. The lower Court utterly mislead and thus ailed to consider the probability that even though the plaintiffs have no own cart, yokes or four wheeler they can hire such in case of necessity. Thus the observation of the lower court that there was no actual enjoyment of the rastha as mentioned in exA1 is not with sound reasoning. P.W.1 in his evidence categorically stated that they used rastha for transport of gravel and mud while constructing their house. Even from such statement of P.W.1 showing the usage of suit rastha referred in Ex.A1 the lower Court erroneously doubted. Another unwarranted comment is that such evidence does not show the continues and uninterrupted enjoyment over a period of more than twenty years.” 10. Thus, the appellate Court held that even though the plaintiffs have no own cart, yokes or four wheeler, they can hire such in case of necessity and therefore, the observation of the trial Court that there was no actual enjoyment of the rastha as mentioned in Ex.A1 is not based on sound reasoning. The appellate Court also discussed the evidence of P.W.1 and referred to the report of the Advocate Commissioner and also the evidence of P.W.2 and then came to the conclusion that the findings of the trial Court are not based on proper appreciation of the evidence. The appellate Court also observed that the very fact that mud and stones were kept on the rastha reveal that it is being used for taking carts and yokes. The appellate Court also came to the conclusion that merely because, there is alternate rastha for passage of men that does mean that the plaintiffs are not in need of vide passage for taking carts, yokes and bullock carts etc. 11. The learned counsel for the appellants submitted that the appellate Court went wrong in reversing the judgment. It is further submitted that the plaintiffs ought to have proved that they have been continuously using the rastha for more than 20 years and that the plaintiffs have failed to prove that they are using the rastha for more than 20 years. Admittedly, they do not have any bullock carts etc and therefore there is no necessity of the rastha for them and when there is alternative rastha, they are not entitled for a right of easement of necessity. It is also submitted that the plaintiffs have failed to using the rastha for more than 20 years. 12 The learned counsel for the appellants has relied on the judgment of the Supreme Court in case between JUSTINIANO ANTAO AND OTHERS V. BERNADETTE B. PEREIRA (SMT)[1]. 13. In that case, the plaintiffs did not aver about the rastha in their plaint and the Supreme Court held as follows: “We have gone through the evidence adduced. From this, it is more than clear that there is no specific averment in the plaint or in the statement of the witnesses showing that this access from the land of the defendants was used as of right for the last 20 years.” 14. Therefore, on facts it is clear that above referred case can be distinguished. 15. The learned counsel for the respondents submitted that the plaintiffs have purchased the property on 14.12.1978 and constructed a house and in their sale deed itself, there a reference about this rastha shown as the rastha for taking the bullock carts, yokes etc. It is further submitted that the appellants, after purchasing the property raised a bunk and encroached the rastha and therefore, the plaintiffs constrained to file the suit for a mandatory injunction. She has also taken me through the judgments of both the Courts below and also through the contents of the report of the Advocate Commissioner and her main submission is that though there are two rasthas, one rastha is very narrow and it cannot be used for taking bullock carts yokes etc and it can be used only for ingress and egress of persons and whereas the disputed rastha is useful for taking bullock carts, yokes etc. Therefore, if this rastha blocked, the plaintiffs would be put irreparable loss. 16. In support of his submission, he has relied upon on the judgment of the Supreme Court in case between SMT. NARYANI DEVI, APPELLANT V. PHOOL CHAND AND ANOTHER, RESPONDENT[2]. 17. The only point that arises for consideration is whether the findings of the appellate Court are not based on proper appreciation of the evidence? 18. Section 15 of the Indian Easements Act is as follows: “15. Acquisition by prescription:-- When the access and use of light or air to and for any building have been peaceably enjoyed therewith, as in easement, without interruption, and for twenty years; and where support from one person’s land, or thing affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years; and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption; and for twenty years. the right to such access and use of light or air, support or other easement shall be absolute. Each of the said period of twenty yeas shall be taken to be period ending within two years next before he institution of the suit wherein the claim to which period relates is contested.” 19. In the above 2nd cited decision the Apex Court observed as follows: “Where a person transfers immovable properties to another and an easement in other immovable property of the transferor is necessary for enjoying the subject of the transfer, the transferee shall be entitled to such easement and where an easement in the subject of the transfer, the transferee shall be entitled to such easement. S.13 contemplates that the easement, which is claimed as an easement of necessity, can be claimed as the only possible mode of enjoyment, which is claimed as an easement of necessity, easement of necessity, can be claimed as the only possible mode of enjoyment of ht right claimed having regard to the normal way of life of the person who claims it and of persons belonging to his category. In such a case the law does not require that before being entitled to clam an easement by way of necessity it must be established by the transferee that the claim is one of absolute necessity in the sense that there should be no other manner of such enjoyment available in any circumstances whatsoever.” 20. It is settled law that the easementary right can be enforced, if the plaintiffs have been using the same for the last 20 years. P.W.1 categorically deposed that they used the rastha for transport of gravel and mud while constructing their house. The Advocate Commissioner in his report categorically mentioned that the width of the rastha is 12 feet and he found gravel and mud etc on the road. Thus, the contents of the report of the Advocate Commissioner have been corroborating the evidence of P.W.1. As observed by the appellate Court and the evidence of P.W.2 reveals that the plaintiffs need the disputed rastha to bring carts. P.W.2 also categorically deposed that the vendors and the plaintiffs’ father had been using the rastha. Admittedly, the plaintiffs have purchased this property on 4.12.1978 and there is a reference with regard to this rastha for taking bullock carts, yokes etc., using the rastha for a period of 20 years does not mean that it should be used and on each and every day. Merely because, the plaintiffs do not have carts and yokes it cannot be concluded that they never used the rastha. Admittedly, they have constructed a house and for the purpose of constructing the house, they had taken carts through the suit rastha. Therefore, the finding of the trial Court that merely because of the plaintiffs do not have carts and yokes, they never used the rastha is not based on proper appreciation of the evidence on record. It may be a fact that the plaintiffs may be having another rastha for ingress and egress. However, that will not fulfill the need of the plaintiffs to take the carts and yokes. It is clear that the finding of the appellate Court appears to be just and reasonable and based on the proper appreciation of the evidence. 21. In view of the same, we do not see any reason to interfere with the well reasoned judgment of the Appellate Court. 22. Accordingly, the Second Appeal is dismissed. No order as to costs. ______________________ Justice B.Chandra Kumar Date:01.02.2011 mrb [1] (2005) 1 Supreme Court Cases 471 [2] AIR 1981 ALLAHABAD 99