RSA No. 2604 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2604 of 2008 Date of Decision: 19.11.2009 Gurmail Singh ..Appellant Vs. Narinder Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Sanjay Gupta, Advocate, for the appellant. Mr.C.L.Verma Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 24.12.2007, passed by the learned Additional District Judge, Hoshiarpur vide which suit filed by the plaintiff/respondent for declaration RSA No. 2604 of 2008 2 to the effect that the plaintiff/respondent had a right of easement of necessity, to pass through the land comprised in Khewat No.160Min Khata No.197 Khasra No.79/24/1 (0-18) belonging to the defendant/appellant in the revenue estate of village Khanaura Tehsil and District Hoshiarpur, with a consequential relief of permanent injunction restraining the defendant from creating any obstruction in the peaceful use of the said land, by the plaintiff/respondent as passage stands decreed. The plaintiff/respondent brought a suit on the pleadings that the property in dispute comprised in Khasra No.79/24/1 along with other properties were originally owned and possessed by Surjan Singh grand- father of the appellant and father of the respondent. Surjan Singh during his life time distributed his entire land in a family settlement as a result of which property comprised in khasra No.79/17/2 fell to the share of Piara Singh, maternal uncle of the plaintiff, whereas the property falling in Khasra No.79/24/2 fell to the share of father of the appellant,whereas the property comprised in khasra No.79/24/1 fell to the share of the appellant/defendant. Surjan Singh being owner in possession of the property in dispute and other property was using the same and no separate passage was provided or carried out. The land comprised in Khasra No.79/17/2 has no other approach, therefore, one has to pass through the property comprised in Khasra No.79/24/1. The plaintiff/respondent purchased half share of the property comprised in Khasra No.79/7/2 and for going to his land, the plaintiff/respondent has to pass through the property comprised in Khasra RSA No. 2604 of 2008 3 No.17/24/1 but the appellant/defendant threatened not to allow the plaintiff to pass through the said field even though the plaintiff/respondent had the right of easement of necessity. The suit was contested by rasing a preliminary objection that the plaintiff had no locus standi to file the suit; that the suit was not filed by authorised person, and that the suit was not maintainable in the present form. On merit, relationship between the parties was admitted. The stand taken in defence was that Surjan Singh by way of gift deed, had gifted some of his property to his three sons Nirmal Singh, Gurmail Singh and Piara Singh and had executed a Will in favour of his grand son namely plaintiff. The parties were in exclusive possession of their respective shares. The property comprised in Khasra No.79/17/2 fell to the share of Piara Singh but was never cultivated by him. He died about 5 years ago. The property comprised in Khasra No.79/24/1 is exclusively owned and possessed by the appellant/defendant. That there was no passage for going to the property comprised in Khasra No.79/17/2 as it remained uncultivated. It was pleaded that the plaintiff/respondent intentionally purchased 2 kanals of land out of the property comprised in khasra No.79/17/2 from Surjit Singh one of the grand-sons of Surjan Singh, knowing fully well that there was no passage to the said property. It was pleaded that the plaintiff had no right of easement of necessity. Other averments were also denied. Learned trial court dismissed the suit filed by the plaintiff. Learned lower appellate court accepted the appeal by recording the RSA No. 2604 of 2008 4 following findings:- “ It is an admitted and proved fact that the property comprisedof Khasra No.79/24/1 and other property surrounding the said khasra number was earlier owned and possessed by Shri Surjan Singh,the predecessor-in-interest of the parties to the suit. It is also admitted as well as proved fact that Shri Surjan Singh during his life time had distributed his entire property in favour of his sons. Resultantly, the property comprisedof Khasra No.79/17/2 fell to the share of Shri Piara Singh. The property comprisedof Khasra No.79/24/2 fell to the share of Nirmal Singh who happens to be father of the appellant and property comprisedof Khasra No.79/24/1 fell to the share of respondent. It is also proved on record that after the distribution of the property owned and possessed by Surjan Singh, all the persons wo have acquired that property are in possession of their respective shares. A perusal of copy of Aks- shijra ExP.2 depicts that for going to property comprisedof Khasra No.79/17/2, one has to pass through the property comprisedof Khasra No.79/24/1 which is in possession of the respondent. There is no other independent approach to the property comprisedof Khasra No.79/17/2. It is also proved on record that the appellant by virtue of sale deed dated 22.3.2000 has purchased ½ share of property comprisedof Khasra No.79/17/2. Therefore, in the absence of any other passage or RSA No. 2604 of 2008 5 approach to this property, the appellant has an easement of necessity for going to his share of the property. Learned counsel for the respondent has laid much stress on the point that in the sale deed, the passage to property comprisedof Khasra No.79/17/2 has not been shown and that since there was nos passage for going to that property, it remained un- cultivated and consequently, the appellant cannot claim any right of passage from the property owned and possessed by the respondent. This submission in my view does not appear to carry much weight in as much as, admittedly earlier the property which had fallen to the shares of the parties to the suit and other property was earlier owned and possessed by Surjan Singh, the predecessor-in-interest of the parties to the lis. In that eventuality, Surjan Singh must have been using the property in the manner liked by him and there was no occasion for Sh. Surjan Singh to ask anybody else for his right to go to property comprisedof Khasra No.79/17/2. Shri Surjan Singh distributed his entire land to his sons and since admittedly property comprisedof Khasra No.79/17/2 has no other passage or independent approach, the appellant after having purchased ½ share of the said property is entitled for a right of passage from property comprisedof khasra No.79/24/1. He has acquired an easement of right for going to his property. The said easement of right is necessary for enjoying the property so RSA No. 2604 of 2008 6 purchased by the appellant, since the property comprisedof Khasra No.79/17/2 is in accessible, except by passing over the property comprisedof Khasra No.79/24/1, owned and possessed by the respondent. The mere non-mentioning of the fact of any passage to property comprisedof Khasra No.79/17/2 in the sale deed is not sufficient to dis-entitle the appellant from his right to pass over the property owned and possessed by the respondent. Therefore, once the appellant has easement of necessity, the respondent cannot restrain him from passing through the land comprisedof Khasra No.79/24/1.” Mr.Sanjay Gupta, learned counsel for the appellant contended that this appeal raises the following substantial question of law for consideration by this court:- 1. Whether the plaintiff was entitled to easement right when he neither pleaded the ingredients of Section 13-A of the Indian Easement Act, 1882 and Section 25 of the Limitation Act? In support of the substantial question of law the learned counsel for the appellant referred to Section 13-A of the Indian Easement Act, 1882 which reads as under:- “ Easement of necessity and quasi easements-- Where one person transfers or bequeaths immovable property to another-- (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying subject of the RSA No. 2604 of 2008 7 transfer or bequeath, the transferee or legatee shall be entitled to such easement; or (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall,unless a different intentionis expressed or necessarily implied, be entitled, to such easement. (c) if an easement is subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator the transferor or the legal representatives for the testator shall been titled to such easement; or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor or the legal representatives of the testator, shall, unless a different intentionis expressed or necessarily implied to such easement. Where a partition is made of the joint property of several persons-- (e) If an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall been titled to such easement; or (f) if such an easement is apparent and continues and necessary for enjoying the share of latter as it was enjoyed when the partition took effect, he shall unless a different RSA No. 2604 of 2008 8 intentionis expressed or necessarily implied, be entitled to such easement. The easement mentioned in the Sections Cls (a), (c) and (e) are called easement of necessity. Where immoveable property passes by operation of law, the person from and to whom it passes are, for the purpose of this section, to be deemed a, respectively, the transferor and transferee.” The contention of the learned counsel for the appellant was that the appellant not being transferor of the land to the plaintiff/respondent, no easement of necessity could be claimed, as the transfer by the third party is not covered under section 13-A of the Act. This contention of the learned counsel for the appellant deserves to be noticed to be rejected. Under Section 13-A(e) of the Act the easement of necessity is also available to a person when it is necessary for party to enjoy his share of the property. Once it is not in dispute that there is no passage to the property in dispute, learned lower appellate court was justified to hold that the appellant had a right of easement. This view finds support from the judgment of Hon'ble Kerala High Court in the case of Maniyan Krishnan and another Vs. Maniyan Nanukuttan AIR 1986 Kerala 75, wherein it was laid down as under:- “ The easements mentioned in this section,clauses (a), (c) and (e) are called easements of necessity. RSA No. 2604 of 2008 9 Easement of necessity arises on the severance of tenements. The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant. Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. As far as the Indian Law is concerned, the contours of this doctrine implied grant to create an easement of necessity are well delineated in the section itself. It has to be remembered that it is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Vide Aldridge V. Wright, (1929)2 KB 117 CA and Union Lighterage Co. V. London Graving Dock Co., (1902) 2 Ch 557. It has to be remembered that an easement of necessity arises where normally both the dominant and servient tenements have been in common ownership so that the creation of an easement by implication of law may be said to be the outcome of the former jointness of the two tenements. The disposition which causes a cessation of the common ownership that gives rise to the creation of an easement, may be of either tenement, or a simultaneous disposition of both tenements.” Hon'ble Allahabad High Court in the case of Digambar Singh Vs. Birendra Singh AIR 1930 Allahabad 313 has been pleased to hold that if prior to partition the land is irrigated then the party gets a right of RSA No. 2604 of 2008 10 easement and can even seek injunction against the party through whose land the flow of water is there. Hon'ble Karnataka High Court in the case of Baburao Yashvantrao Jadhav Vs. Shamrao Khandi Jadhav AIR 1992 Karnataka 181, has laid down that, if a party has no other passage to approach his land, then the party can claim easement of necessity. Learned counsel for the appellant also contended, that the plaintiff had neither signed the pleadings nor appeared in the witness box, therefore the suit filed by the plaintiff could not be decreed. This contention again deserves to be noticed to be rejected, as suit was filed through attorney who had also appeared in the witness box. He did not depose on facts which could be said to be within the personal knowledge of the plaintiff. Substantial question of law raised is answered against the appellant. The appeal being without any merit is ordered to be dismissed but with no order as to costs. 19.11.2009 (Vinod K.Sharma) rp Judge