HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case S.A. No. 42 of 2002 Mathura Datt Misra Vs. Laxmi Datt and another Approved for reporting. Date of Decision:- 20-02-2008 Initial of Judge: ………………………… ,,,,,,,,,,,,,,,,,,,,,,,, ………………………… HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 42 of 2002 Mathura Datt Misra s/o Sri Hari Datt Misra, resident of Mohalla Kholta, Almora, District Almora …….Defendatn-Appellant versus 1. Laxmi Datt Joshi s/o Sri Murli Dhar Joshi 2. Amba Datt Joshi s/o Sri Murli Dhar Joshi Both residents of Moh. Kholta, Almora District Almora ………… Plaintiff-respondents Sri Rakesh Thapliyal, Advocate for the appellant Sri A.D. Tripathi, Advocate for the respondents. Dated: Feb. 20, 2008 Hon’ble Rajesh Tandon, J. Heard Sri Rakesh Thapliyal counsel for the appellant and Sri A.D. Tripathi counsel for the respondents. Present second appeal has been preferred against the judgment and decree dated 26.4.2002 passed by the District Judge, Almora in Civil Appeal No. 5 of 1999. Briefly stated the plaintiff-respondents have filed a suit before the Civil Judge (Junior Division) Almora for perpetual injunction restraining the defendant not to interfere in the way of the plaintiffs going to their house and shown by letters A.B. C.D. in the enclosed map. According to the plaintiffs the approach way going to their house is more than 100 years old and they were continuously using the rasta. The way is 182 feet long and 6 feet wide. The plaintiffs have right of easement to use this rasta and there is no alternative way for ingress and aggress to their house. Defendant has filed the written statement and has denied the plaint allegations. He stated that he purchased an old house of khatauni No. 35 but there was no way as stated by the plaintiff. The way shown by the plaintiff is the own way of the defendant. On the pleading of the parties the following issues were framed: 1. Whether the way in dispute is more than 100 years old and plaintiffs used this way for ingress and aggress to their house and whether the plaintiffs have right of easement to use the rasta ? 2. Whether the plaintiffs have no alternative way for ingress ingress and aggress to their house? 3. Whether the disputed rasta is going through plot no. 16409 ? If son, its effect? 4. Whether the defendant has legal right to prohibit the plaintiffs from using the disputed way? 5. Whether the suit of the plaintiff is barred by section 15 of the Easement Act and the suit is liable to be dismissed? 6. Whether the rasta in dispute is the personal property of the defendant no. 1? If so, its effect? 7. Whether the plaintiffs and defendant have purchased separate plots and acquired right of easement from their predecessors? 8. Whether the disputed rasta is settlement way ? If so, its effect? 9. Whether there are public ways on both sides of the land purchased by the plaintiffs and defendant ? If so its effect 10. Whether the suit is not valued properly and is liable to be dismissed? 11. To what relief if any, are the plaintiffs entitled? The trail Court has held that the plaintiffs have failed to prove that the disputed rasta was more than 100 years old and the plaintiffs have a right of easement for use of that rasta. The plaintiffs have alternative ways to ingress and egress to their house. The trial court has also held that the plaintiff have failed that they have acquired any right to use the rasta. Accordingly, the suit was dismissed by the trial Court vide judgment and decree dated 24.2.1999. The plaintiffs have filed an appeal against the judgment and decree passed by the Civil Judge (J.D.) before the District Judge, Almora. The lower appellate Court has held that the plaintiff have right of easement to use the rasta for ingress and engress to their house and accordingly allowed the appeal and set aside the judgment and decree passed by the trial Court. Feeling aggrieved the defendant-appellant has preferred the present appeal. The second appeal was admitted on the following substantial question of law: Whether the learned District Judge has erred in law in holding that the plaintiff has an easementary right of necessity even after being there an alternative passage available for the plaintiff? The counsel for the appellant has submitted that there ware public ways of both the sides of the house of the plaintiffs. From the evidence adduced by the defendant it is proved that the disputed rasta was not present at the time when property was purchased by the plaintiffs and defendant and as such the plaintiffs have no right to use the land of the defendant as way to ingress or egress to their house. The plaintiffs have claimed that the disputed rasta is more than 100 years old. The plaintiffs and defendant have purchased the land from Ishwari Dutt and others by registered sale deeds. If the rasta is so old it should certainly be found place in the site plan attached with the sale deeds. It should have mentioned in the sale deed of the plaintiffs that they have purchased all rights over the rasta along with the land. It is admitted to both the parties that Khyali Ram Pandey was the Attorney of the owners and he executed sale deeds in favour of plaintiffs and defendants in the year 1975. This person was examined as a witness by the defendant. Khyali Ram Pandey has stated that he executed the sale deed in favour of the plaintiff and defendants in the year 1975. The site plans attached to the sale deeds were prepared by Sri Harshdev Paliwal. There was no rasta shown in the sale deed nor it was actually present at the time of execution of sale deed. Sri Harshdev Paliwal as also examined as D.W.3 . This witness has categorically stated that he prepared the site plan of the land sold to the plaintiffs and defendants on 20.4.1975. At this time the disputed way was not in existence. There is ample evidence available on record that there are municipal public ways both side of the land of the plaintiffs. The plaintiffs are owners of plot no. 16453 and this plot is adjacent to the public ways. Advocate Commissioner has also stated that public ways are adjacent to the property of the plaintiffs. Thus it is unequivocally proved that the plaintiffs have alternative ways for ingress and aggress to their house. Section 13 of the Easements Act 1882, permits easement by necessity and that cannot be claimed if an alternative passage is available, though it may be bit inconvenient or a longer for his ingress and egress. Apex Court in the case Justiniano Antao and others vs. Bernadette B. Pereira (Smt.) (2005) 1 SCC 471 has held as under: “Therefore, it is clear that it is not the case that the plaintiff has been using the access as of right through the property of the defendants for more than 20 years. Since the plaintiff has an access through the southern side of her property, we see no reason why the property of other persons be used as an access to her house. 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 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. More so we find from the material placed on record and especially the photographs which have been exhibited and marked as Ext. DW 3/A in the court that there are two pillars showing the existence of a gate in the southern side but it has been closed down by rubble stones. The defendants have put up a strong case that the plaintiff has an opening in the southern side and it is amply established that there exist two pillars showing the existence of a gate which has been covered by rubble stones in the southern side. It was also pleaded that the plaintiff was using the same and it is only after 1984 she got the gate constructed through the land of the defendants. Therefore, on the basis of the evidence and statement of the witnesses, we are satisfied that the first appellate court has correctly approached the matter and the view taken by the High Court as well as the trial court does not appear to be based on correct appreciation of facts.” A Division Bench of Gujrat High Court in the case Ramesh Chandra Bhikhabhai Patel vs. Maneklal maganlal Patel AIR 1978 Guj. 62, has observed that the easement of necessity does not survive after the alternative out let is available to the claimant as of right. Similarly in Thottathil Thamsakikkum Cherootty alias Balan vs. Puliyaratharayil Velayudhan Nari, AIR 1998 Kerala 164 the Kerala High Court considered the same aspect and observed as under: “Since there is an alternative pathway, the case of easement by necessity goes. The trial Court held that the plaintiff has no easement by prescription. ****************** As the plaintiff has no right of easement of necessity and also easement by prescription, he particular portion of the defendant’s property so as to cause hardship to the defendant.” Rajasthan High Court in a similar case after placing reliance on various judgments of other High Court in the case Rama vs. Megha and others AIR 2002 Rajasthan 309, has observed as under: “If the alternative available passage is usable and remains so throughout the year, the question of claiming easementary right may not arise.” Thus in view of above, the plaintiffs cannot claim right of way through the property of the defendant appellant as easementary right as alternative path way is available to the plaintiffs for ingress and egress to his property. Thus the plaintiffs have no right of easement of necessity. Apex Court in the case Hero Vinoth (Minor) vs. Seshammal (2000) 9 SCC 524 has clearly distinguished easement by necessity and easement by grant as under:- “An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. 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 made 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 he easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in Section 41. 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 41 is not applicable in such case”. The plaintiff/respondents have neither pleaded that right of rasta was purchased by them through sale deed for ingress and egress to their house. Thus the trial Court has rightly dismissed the suit of the plaintiffs but the lower appellate court was not justified by interpreting Section 13 of the Easements Act, and holding that the plaintiffs have right to use the rasta even alternative way was available to them. Consequently, the substantial question of law is decided in favour of the appellant. Accordingly, appeal is allowed with costs throughout. The judgment and decree dated 26.4.2002 passed by the lower appellate court is set aside and the judgment and decree dated 24.2.1999 passed by the trial Court is affirmed. Dated: 20.2.2008 Rajesh Tandon, J. *Dhyani