ORISSA HIGH COURT: CUTTACK. S.A. No. 163 OF 2002 From a judgment and decree dated 27.2.2002 and 16.3.2002 respectively passed by Shri S.K.Patel, learned Addl. District Judge, Fast Track Court No.2, Bhubaneswar in T.A. No. 87/1997/39/2001 confirming the judgment dated 29.9.1997 and decree dated 27.10.1997 passed by Shri T.P. Rath, learned Civil Judge (Junior Division), Bhubaneswar in T.S. No. 157/1994. ----------- Arta Sahoo (dead) …… Appellants after him, his L.Rs, Sabitri Sahoo and others. -Versus- Babaji Sahoo and others …… Respondents. For appellants : M/s. P.K.Mohanty, D.N.Mohapatra, G.S.Satpathy, Smt.J.Mohanty, S.N.Dash and P.K.Nayak. For respondents: M/s. J.R. Dash, C.M.Jena, K.L.Dash, M.R.Mohanty. (For Respondent no.1) ------------------------------------ Date of Judgment: 19.10.2011 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J. A suit was filed by the appellants for declaration of the easementary right of passage over 7 kadis of land in plot No.4462 as per the sketch map attached to the plaint and plot No.4463 measuring Ac0.007 decimal as per the said map along with a prayer for a decree for permanent injunction against the defendants. 2. Admittedly, the suit properties along with other property are “GHARABARI” lands and have been recorded jointly in the name of the plaintiffs and the defendants, who are the successors-in-interest of the suit land from a common ancestor. The defendants after appearance and filed their written statement. 3. The learned trial court framed as many as four issues, which are as follows :- (1) Whether the plaintiffs have got right of easement over the suit strip of land ? (2) Whether the plaintiffs are entitled to the relief of injunction against the defendants ? (3) Whether the suit is maintainable ? (4) Whether there is cause of action for the plaintiff to file the suit ? 4. The parties led evidence and the learned trial court on appreciating the evidence adduced, both oral and documentary, has come to the finding that the claim of the plaintiffs with regard to their right of easement over the passage in question is over the land on which, the defendants also have title along with the plaintiffs and a party cannot claim right of easement over his own property. Further, relying on the decision in the case of Usharani Das v. Bhaktahari Mohanty, A.I.R. 1984, Orissa 97 wherein, it was held that an easement of necessity is an easement without which, the property cannot be used at all and not merely for reasonable 2 and convenient enjoyment of the property, on analyzing the evidence of the witnesses, came to a finding of fact that the suit passage is not the only passage for ingress and egress to and from the homestead property of the plaintiffs, as they have purchased the adjacent land, which is by the side of a public road. Hence, the trial court concluded that the claim of the plaintiffs is not also one of necessity. 5. Accordingly, the learned trial court having dismissed the suit, the appellants preferred an appeal, which was heard by the learned Additional District Judge, Fast Track Court, being, Title Appeal No.87/39 of 97 of 2001. The learned first appellate court assigning reasons in support of his judgment and agreeing with the finding of the learned trial court, confirmed the judgment of dismissal of the suit passed by the learned trial court. 6. The appellants, being aggrieved, have preferred the present Second Appeal. The second appeal has been admitted on the substantial questions of law framed in the ground of appeal as ground Nos. II, III and IV, which are as follows :- “II. Whether having regard to Exts.A and B, the learned courts below are justified in holding that in the absence of any actual partition, but as per the purport of the said documents, the right of passage of the plaintiffs-appellants as recorded in Exts.1 and 2 could have been taken away and/or extinguished ? 3 III. Whether even having regard to the findings of the learned courts below that the parties are in joint possession, the co-sharers like the defendants-respondents could not have created any hindrance in the right of passage of another co-sharers like the plaintiffs as per the right recorded in the record of right Exts.1 and 2 and consequently, the plaintiffs were entitled to order of injunction for protection of their right of passage or not ? IV. Whether the learned trial court is right in holding as against issue No.I that the plaintiffs having purchased another contiguous plot and having availed the right of passage to the recorded homestead plots and the same being the alternative way were not entitled to declaration of ancestral easementary right of passage as per the R.O.Rs. Exts.1 and 2 and whether the ratio of the decision in A.I.R. 1984 Orissa, 97 applies to the facts and circumstances of the case or not ?” 7. With regard to the substantial questions mentioned in ground Nos.II and III, this Court finds that since the property has been jointly recorded, question of right of easement, as claimed by the plaintiffs did not arise and just because, a noting has been made in the R.O.Rs with regard to a passage existing, such note in the remarks column of the R.O.Rs. cannot be accepted, as a piece of evidence to prove the easementary right of the plaintiffs, over the suit passage, who are joint owners of the disputed property along with the defendants. 8. With regard to the third question of law in ground No. IV, this Court does not find any error to have been committed by the courts below in holding that the plaintiffs 4 having purchased another contiguous plot, which is adjacent to the public road, there is no easement of necessity. 9. I, therefore, find no merit in this Second Appeal, which is accordingly dismissed, but in the circumstances without cost. …………………… M.M. Das, J. Orissa High Court,Cuttack October 19th,2011/Subha 5