R.S.A. No. 209 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 209 of 1985 Date of decision:- Sunil Kumar ...Appellant Versus Ram Charan Dass ...Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Sudhir Mittal, Advocate for the appellant. RITU BAHRI J. This regular second appeal is directed against the judgment and decree passed by the Senior Sub Judge, Rohtak decreeing the suit of the plaintiff vide judgment dated 17.8.1983 and judgment dated 09.11.1984 passed by the Additional District Judge, Rohtak reversing the judgment of the trial Court and partly accepting the appeal by giving decree for prohibitory injunction directing the defendant to remove the construction made by him on the passage being used by the plaintiff for ingress and outgress from his house to the municipal street. The plaintiff-respondent filed a civil suit No.610 of 28.9.1982 for injunction. As per the site plan Ex.PW5/6 delineated with blue colour was owned by two persons namely Manohar Lal and Mangu. On the death of Manohar Lal, the plaintiff according to the averment succeeded to the share of Manohar Lal on his heir, while the share of Mangu was purchased by him. He thus became owner in possession of the house. To the South of the house of the plaintiff, there is another house, which was previously owned by Jhundu and Sundu sons R.S.A. No. 209 of 1985 -2- of Ram Parsad Mahajan. To the South West of the house Jhundu and Sundu there is common chowk of plaintiff and the aforementioned Jhundu and Sundu. There is a joint Dehliz, which has been shown in red in the site plan and is being used for moving out to the gali. This Dehliz is being used as a thoroughfare for entering into the gali and there is no other passage for entering into the gali thoroughfare. There is another house to the South of the aforementioned joint Dehliz, which is owned by Chandan Mahajan. After the death of Chandan, Sunil Kumar-defendant purchased the house vide a registered sale deed dated 27.9.1979 for a sum of Rs.10,000/-. The grievance of the plaintiff is that the defendant intends to demolish the Dehliz and amalgamate in his house. For this purpose, he plans to construct a wall. The defendant has no right or title to do so. Hence, the suit for permanent injunction restraining the defendant amalgamating the Dehliz or raising a wall and a decree of mandatory injunction is sought directing the defendant to remove the occupation of the Dehliz. The suit was contested by the defendant. The defendant did not admit that plaintiff is owner of the house or that another house to the South from the house of the plaintiff was owned by Jhundu and Sundu sons of Ram Prasad. It was not admitted that there was any common chowk, which was being used as Dehliz for entering into the gali. The defendant purchased the house owned by Chandan Mahajan. The said common chowk is municipal street and the so-called Dehliz is part of the plot of the defendant, which the defendant purchased from Chandan Mahajan. The defendant has every right to raise construction over the plot. The plaintiff has no cause of action to file the suit and it has not been properly valued for the purpose of Court fee. The plaintiff should have paid the court fee for the relief of permanent injunction and also on that mandatory injunction separately. From the pleadings of the parties, following issues were framed on R.S.A. No. 209 of 1985 -3- 16.1.1980 :- 1. Whether the Dehliz shown in red colour in the plan attached is a common passage for the use of the plaintiff and others except the defendant ? OPP 2. Whether the plaintiff and the said Jhundu and Sundu own exclusively chowk existing on the Eastern- Southern side of the plaintiff's house and Western side of the house of said Jhundu and Sundu as alleged in para No.4 of the plaint? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit has no locus-standi to file this suit? OPD 5. Whether the plaintiff has no cause of action against the defendant?OPD 6. Whether the suit is bad for non-joinder of the parties? OPD 7. Whether the plaintiff is estopped from filing the suit by his act and conduct as alleged?OPD 8. Whether the site in dispute is not a passage and is part and parcel of the defendant's land?OPD 9. Whether the site in dispute is purchased for valuable consideration by the defendant and over which the house already stood constructed before filing the suit?OPD 10. Whether the suit is false and frivolous and the defndant is entitled to special costs u/s 35-A CPC? OPD 11. Whether the suit has been properly valued for purposes of court fee and jurisdiction? OPD 12. Whether the suit is barred by time? OPD 13. Relief. The trial Court decided issue Nos.1 and 2 in favour of plaintiff and issue Nos.8 and 9 against the defendants. Issue Nos.3,4,5,6,7,10 to 12 were decided against the defendant. Issue No.11 was decided in favour of defendant R.S.A. No. 209 of 1985 -4- as the Court fee was held to be deficient to the extent of Rs.25/-. The suit of the plaintiff was decreed and a permanent injunction was granted for restraining the defendant from raising any construction over the Dehliz shown in red in the site plan restraining from amalgamating this portion in his house. He was directed to remove the construction from the Dehliz. The defendant filed civil appeal No.161/13 of 1983 before the Court of Additional District Judge, Rohtak. The lower Appellate Court has partly accepted the appeal filed by the defendant. A decree was passed restraining the defendant-appellant amalgamating the site ABCD shown in red colour in the site plan Ex.PW5/6 in his house and from raising construction over it which may interfere with its user by the plaintiff as a passage for approaching his house from the municipal street. A decree for prohibitory injunction was passed directing the defendant to remove construction which might have been made by him over the site and which may interfere with the user of the said side by the plaintiff as a passage for ingress to and egress from his house to the municipal street. The finding on issue No.9 recorded by the trial Court was modified to the extent that defendant did purchase the site in dispute but the heirs of deceased Chandan had no authority to exclusive title in the said site to the defendant. The finding on issue No.8 to the effect that the said site shown in red is a passage and not a part of the house of the defendant, is affirmed. Mr. Sudhir Mittal, Advocate appearing for the appellant submits that the defendant had purchased this site vide registered sale deed dated 27.9.1979. The said site under Dehliz was purchased by the defndant on 27.9.1979 (Ex.D-1) from the successor in interest of the said property i.e. Chandan Mahajan. The plaintiff-respondent has admitted that there is no credible evidence on the file to sustain the finding that the defendant has no right to use the site in dispute as chowk for entering and exit from his property. There was a litigation about R.S.A. No. 209 of 1985 -5- hundred years back vide civil suit No.324 of 1885, which was discharged on 26.6.1889 between Chandan Lal predecessor-in-interest of the defendant and one Bal Kishan Dass. Ex.PW5/5 is the copy of the said civil suit. Ex.PW5/2 is the copy of the site plan submitted in the said civil suit. As per this site plan the common Dehliz was left for common purposes. In another litigation between Jhundu and Jyanti Prasad, who was predecessor-in-interest of the plaintiff. Site plan Ex.PW5/1 was filed and there also the site under Dehliz was shown as common Dehliz. It is admitted by the defendant-appellant that by implicating the plaintiff and his predecessors for acquiring the site under Dehliz as passage. This usage was by way of grant given by Chandan. Once Chandan vide sale deed 27.9.1979 sold this land to the defendant-appellant, the said right cannot be taken away by the plaintiff. Mr. Sudhir Mittal, Advocate has vehemently argued that the plaintiff has an alternative approach from his house to the municipal street. After the sale deed executed, the right to use the path cannot be claimed by the plaintiff on the pretext that he has been using it since the time in immemorial. Mr. Sudhir Mittal, Advocate has finally argued that the suit filed by the plaintiff is not under the Easement Act, 1882. It is a suit for injunction restraining the defendants from making any construction over the Dehliz and restraining him from amalgamating this portion in his house. Once the Appellate Court has given a finding on issue No.2 that the defendant has a right to use the site under common chowk for entering to and exist from his property and the defendant can make opponents in the wall to enable him to enter this municipal street. Once the Appellate Court came to the conclusion that the plaintiff had acquired a right to use the site under Dehliz as passage by way of grant given by Chandan and also that plaintiff had an alternative approach from his house to the municipal street, the lower Appellate Court's decision that the defendant be restrained from amalgamating the said site in his house deserves to be set aside. R.S.A. No. 209 of 1985 -6- He has placed reliance on the judgment of the Supreme Court in Justiniano Antao and others versus Bernadette B. Pereira (2005) 1 Supreme Court Cases 471 to contend that once the alternate passage is available to the plaintiff to have access to the municipal street, her right to easement of necessity is liable to be rejected. After hearing counsel for the petitioner and going through the record of the case, one thing is clear that the present appellant-defendant had purchased this land vide sale deed dated 27.9.1979, which was owned by Chandan Mahajan. There was a litigation about 100 years back vide civil suit No.324 of 1885, which was discharged on 26.6.1889 between Chandan Lal predecessor-in-interest of the defendant and one Bal Kishan Dass. In another litigation dispute was between Jhundu and Jaiyanti Parsad, alleged to be predecessor-in-interest of the plaintiff. The site under Dehliz was shown as common Dehliz. As per both the judgments since the time of predecessor-in- interest of the parties, the site described as Delhiz was reserved as common passage for the use of plaintiffs Jhundu and Sundu and their predecessors besides Chandan. The defendant-appellant admits the above facts but on the other hand claims that this right, which was given by Chandan, cannot be based on facts that he had made a sale in favour of defendant-appellant. The plaintiff has an alternate approach from his house to the municipal street and this fact has been admitted by the plaintiff. The plaintiff is not claiming the right to use this Dehliz as common passage as an easement of necessity rather he is claiming the right on the ground that he and his predecessor-in-interest have been exercising the said site since the time immemorial. The question for consideration before this Court is whether right of passage, which is being used for the last hundred of years raises the presumption of grant. Section 4 of the Easement Act defines 'easement as under :- R.S.A. No. 209 of 1985 -7- “4. An easement is a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.” Section 12 of the Easements Act defines as to who may acquire easement, which runs as under :- “12. Who may acquire easements. An easement may be acquired by the owner of the immovable property, for the beneficial enjoyment of which the right is created or, on his behalf, by any person in possession of the same. One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others acquire an easement for the beneficial enjoyment of such property. No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.” Section 5 of the Easement Act lays that a person can claim perspective easementary right if he has been enjoying the said right continuing for a period of 20 years dominant tenement. The question for consideration before this Court is :- “whether an easementary right can be claimed if an alternative path is available?” In Sailendranath Sadhukhan versus Chhotelal Shaw AIR 1970 Cal 449, a Division Bench of the Calcutta High Court laid down the test of determining the easement of necessity, observing that the claimant has to establish that the property, for which easement is claimed, cannot be enjoyed or used without such right. “Effective user apart from convenience or reasonable user, is the test of it.” R.S.A. No. 209 of 1985 -8- In K. Mohideen Ibrahim versus M. Muhammed Abdullah AIR 1978 Madras 97, the Court held as under :- “Therefore, a person cannot acquire an easement unless he acts with the knowledge that it is a case of dominant and survient tenements and he is exercising the right over the property which does not belong to him. If he enjoys a right under the supposition that he is the owner of the property, does not acquire the easement.” In Smt. Narayani Devi versus Phool Chand, AIR 1981 All 99, the Allahabad High Court held as under :- “Section 13 of the Easements Act contemplates that the easement, which is claimed as an easement of necessity, can be claimed as the only possible mode of enjoyment of the right claimed, having regard to the normal way of life of person which claims it and of the persons belonging to his category.” In Rajpur Colliery Co. versus Pursottam Gohil, AIR 1959 Patna 463, the Division Bench held that where an alternative way is available, the easement of necessity cannot be claimed and observed that a person, claiming the easement of necessity, must establish that he has no other means of going out or coming to his plot except that particular way. Similar view has been reiterated by a Division Bench of Gujarat High Court in Rameshchandra Bhikhabhai Patel versus Maneklal Maganlal Patel, AIR 1978 Guj 62, holding that the easement of necessity does not survive after the alternative out let is available to the claimant of that right. Similarly, in Thottathil Thama-sikkum Cherooty alias Balan versus Puliyaratharayil Velayudhan Nair, AIR 1998 Kerala 164, the Kerala High Court considered the same aspect and observed as under :- “Since there is an alternative path way, the case of easement by necessity goes........ The very fact that the plaintiff has to walk forty-five feet to enter his property, cannot be a ground R.S.A. No. 209 of 1985 -9- to claim the old Bund for his use, specially when he has got another way for his ingress and egress.......... As the plaintiff has no right of easement of necessity and also easement by prescription, he cannot claim that he is entitled to walk through the particular portion of the defendant's property so as to cause hardship to the defendant.” In view of the above the case made out of the plaintiff that he has been using the joint path in the Dehliz since the time immemorial. However, he has carved out an alternative path, which leads to the municipal street. This alternative path is being used by the plaintiff. The question of claiming easementary right on the common path under Dehliz will not arise once the defendant has purchased the suit land from Chandan Mahajan in the year 1979. The appeal is allowed and the judgments of the Appellate Court and the trial Court are set aside. ( RITU BAHRI ) Vijay Asija JUDGE