IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU S.A.No.600 OF 2009 Date:09.02.2011 Between:- M.Noorul Huda ..Appellant/Appellant/Plaintiff And Avvu Prasad Setty and another .. Respondent/Respondent/Defendant JUDGMENT:- This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment and decree, dated 19-01-2009, in A.S.No.81 of 2006, on the file of IV Additional District Judge (Fast Track Court), Anantapur, whereunder and whereby, the judgment and decree, dated 03-08-2006, in O.S.No.89 of 1997, on the file of the Senior Civil Judge, Gooty, dismissing the Original Suit filed by the appellant/plaintiff for declaration of his right of passage shown as M.N.O.P. in Ex.A-1-plaint plan with a width of 15 feet over the land of defendants comprised in S.No.729-A of Guntakal village and for mandatory injunction to remove obstructions made to M.N.O.P. passage and for permanent injunction restraining the defendants and their men from obstructing the plaintiff’s right of way to reach his land of Ac.10.43 cents, lying on the southern side of defendants’ land in the same survey No.729-A, were confirmed. 2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The plaintiff filed the suit stating that the land to an extent of Ac.13.64 cents in S.No.729-A of Guntakal village originally belonged to Dadiyal Sab. It is an agricultural land abutting Gooty-Guntakal Highway. After several alienations and partitions of the said land, one Pinjari Hussainappa, Bavamma and her sons and Fakruddin became entitled to Ac.3.75 cents each. They were possessing and enjoying the same in their own right. On 16-04-1964, Jaffer Sab, father of plaintiff, purchased Ac.3.75 cents from Hussainappa under registered sale deed for consideration. On the even day, he had also purchased Ac.3.29 cents in the same S.No.729-A from Bavamma, wife of Balaiah @ Dadiyal Sab and her sons and from the second wife of Dadiyal Sab and her son. On 29-04-1964, Jaffer Sab purchased Ac.3.39 cents in S.No.729-A from Fakruddin, son of Babaiah under registered sale deed. The said lands purchased under the said three sale deeds are contiguous lands and they were enjoyed by Jaffer Sab as one piece of land. He died in the year 1995. The plaintiff is his only son. The land of plaintiff is shown as A.B.C.D. in the plaint plan. In the northern side land in S.No.729-A, one Sreenivasulu, son of Gopal, purchased Ac.1.00 on 03-09-1986 from Vasikerappa and others. On 04-09-1986, Krupakar purchased Ac.0-59 cents under registered sale deed. The lands covered under the said three sale deeds are shown as C.1.D.E.E1. On 30-07-1996, the defendants purchased Ac.0-59 cents shown as G.H.I.J. in plaint plan from Krupakar and Ac.1-00 shown as D.E.J.H. in plaint plan from Sreenivasulu. The defendants constructed godown in G.H.I.J. portion. They started constructing a compound wall on the northern side. The plaintiff and his predecessors-in-title had been enjoying their land by attending the same through M.N.O.P. passage left in the eastern side of the land of defendants for the past 50 or 60 years without any interference from anybody including the predecessors-in-title of the defendants. Now, the defendants are trying to convert the lands for commercial purpose. If the defendants close subject Rastha or passage, plaintiff has to keep his land idle. Hence, the suit. 4. The brief averments of the written statement filed on behalf of the second defendant and adopted by first defendant are as follows:- The purchase of lands by Sreenivasulu and Krupakar is true. The defendants purchased lands from Sreenivasulu and Krupakar. They constructed godown. The northern compound wall was constructed long back. The plaintiff or his predecessors-in- interest had no access or right of passage as contented by them. There is no Rastha shown as M.N.O.P. in plaint plan at any time. The plaintiff has no easementary right of passage through the defendants’ property. The defendants 1 and 2 purchased Ac.2.59 cents in S.No.729-A. The defendants purchased Ac.1-00 cents on 22-05-1989 from Krupakar. The second defendant purchased Ac.0.59 cents from Krupakar on 03-07-1996. The defendants purchased remaining Ac.1.00 cents from Sreenivasulu on 30-07-1996. Except the defendants, no one has got right, title or interest over M.N.O.P. land. The eastern boundary of their land is Suman Metallurgical Factory. The defendants purchased the land from the sons of Gopal. Their vendors purchased the same from Vasikerappa and his brother Sunkanna. The southern and northern boundary sites were closed by thorny fencing. The defendants and their predecessors-in- interest have been in continuous possession and enjoyment of the land in S.No.729-A. Guntakal Municipality granted permission in ROC.79/96 for construction of godown. The permission for constructing cement godown and for compound wall was approved in ROC No.158/97. Even as per approved plan, the eastern boundary of defendants’ property is Suman Metallurgical Factory and not passage. The defendants left 11 meters of space on the northern side for the purpose of widening the road. A rough plan is filed showing the topography of the subject locality. There is a Rastha with a width of 12 feet to the west of defendants’ property. It connects Guntakal-Gooty Road with the plaintiff’s land. On the south of plaintiff’s land, there is H.L.C. canal. Along the canal, there is another passage leading to Srilanka Colony. To the east of Suman Metallurgical Factory, there is one more passage leading to suit land. There is a neem tree to a height of 20 feet at a distance of 6 feet from fencing of Suman Metallurgical Factory. It is aged 15 years. There are big boulders all around the trunk of said tree. There are big pits at the place where the plaintiff claims passage. The learned Advocate Commissioner also reported that there is no such passage as claimed by the defendants in the plaintiff’s land. The petition filed for temporary injunction is also dismissed. The suit is not maintainable. It is filed to harass the defendants. 5. At first instance, the suit was filed for declaration of right of passage and for injunction. Later, it was amended and the relief of mandatory injunction was sought. An additional written statement is filed stating that the defendants never made any construction after filing of suit and that the report of the Advocate Commissioner discloses the existence of the gate. The plaintiff never took carts, yolks etc. at any time through the disputed passage. The plaintiff is a rich man leading a luxurious life. Jaffer Sab left behind him his widow, the daughters and plaintiff. The other legal heirs are necessary parties to the suit. The suit is bad for non-joinder of necessary parties. 6. Basing on the above pleadings, the following issues are framed for trial: “1. Whether the plaintiff has no access to reach his land except the rastha shown as ‘MNOP’ in the plaint plan? If so, the plaintiff is entitled for declaration of his easementary right in using ‘MNOP’ rastha? If so, the plaintiff is entitled to consequent relief of permanent injunction restraining the defendants, their men and agents from putting any obstructions or making any constructions in the ‘MNOP’ rastha to prevent access of the plaintiff to reach the suit schedule property? 2. To what relief?” 7. On 21-01-2002, the following additional issue is framed: “Whether the plaintiff is entitled to mandatory injunction as sought by him?” 8. During trial, P.Ws.1 to 4 were examined and Exs.A-1 to A-12 were got marked on behalf of the plaintiff. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-9 were got marked. Exs.C-1 and C-2- Commissioner’s report along with plan were got marked. 9. The trial Court, after considering the evidence on record, came to the conclusion that the plaintiff failed to establish that there was a rastha or passage in existence to go to his land and so, reliefs prayed for cannot be granted and therefore, dismissed the suit. On appeal, the said judgment and decree were confirmed. Challenging the same, the present second appeal is filed. 10. Sub-Section 1 of Section 100 C.P.C. declare that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. The expression ‘substantial question of law’ has not been defined in the code. But it must mean that it should directly and substantially affect the rights of the parties. In other words, it can be said that the question must be debatable, agreeable and not free from doubt. The claim of the plaintiff is to right of way as an easement of necessity over the land of the defendants to reach the land of the plaintiff through M.N.O.P passage. The documents- Exs.A-2 to A-12 would not disclose about the existence of the MNOP path way or usage of that path way by the plaintiff and his men so as to reach his lands. The learned counsel for the appellant herein contended that since the land of the plaintiff as well as the defendants originally belong to one Hussainappa, for reaching the land of the plaintiff, the plaintiff is using the land of the defendants. The said aspect cannot be accepted for the reason that if really a pathway or passage is earmarked for going through the land of defendants, certainly the said fact would have been recited in the sale deeds. None of the documents filed by the plaintiff would reveal about the existence of M.N.O.P path way. A Commissioner was also appointed in the trial Court. He submitted a plan along with his report. The Commissioner’s report would clearly go to show that there was no M.N.O.P path way as contended by the plaintiff. The plea of the plaintiff is that after filing the suit, the path way was damaged or destroyed so as to show the non existence of the path way. But it is not suggested to the defendants to the effect that the defendants damaged the path way and to make it appear that no path way was in existence. Therefore, in the absence of any other evidence, the plea of the plaintiff that there was a path way to a width of 15 feet was earmarked by his predecessors-in-interest cannot be accepted. In the absence of any documentary evidence, the oral evidence adduced on behalf of the plaintiff cannot be accepted. Further the plaintiff has not come to the Court with clean hands. He tried to create a passage to go to his lands, even though no passage is in existence. This can be seen from the report of the commissioner. The commissioner has also clearly stated in his report that the road leading from Srilanka colony on the canal bund directly lead to the land of plaintiff. Even the evidence of P.Ws.2 to 4 would disclose that there is an alternative passage to go to the land of plaintiff. 11. The question of law is whether the Courts below have committed an error in holding that the plaintiff is not entitled for easement of necessity under Section 13 of the Indian Easements Act, 1882 (for short, ‘the Act’). Except raising this aspect, no substantial question of law is raised by the plaintiff so as to admit the appeal. Section 13 of the Act reads as under:- “Easements of necessity and quasi-easements-Where one person transfers or bequeaths immovable property to another- a. If an easements in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or b. If such an easement is apparent and continues 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 intention is expressed or necessarily implied, been entitled to such easement; c. If an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled 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 representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled 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 be entitled to such easement or f. if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessarily implied, be entitled to such easement.” From the above provision, it is clear that the plaintiff must show that easement of necessity is an easement without which the property transferred cannot be used at all and not one merely necessity to a reasonable enjoyment of the property. In all the documents filed and relied on by the plaintiff, there is no express covenant as far as existence of passage or use of such passage by plaintiff and his men to go to his lands. Anyone of the easements as mentioned in clauses (a)(c) and (e) is proved by cogent evidence, the right of easement of necessity to plaintiff cannot accrue or arise. None of the findings is shown to be perverse. The findings of trial Court and appellate Court are based upon admissible evidence on record. It is not a case of disregard or non-consideration of relevant or admissible evidence or taking into consideration irrelevant or inadmissible evidence or misconstruction of evidence or documents. Therefore, when the existence of the path way is not established by the plaintiff, the question of invoking Section 13 of the Act does not arise. Therefore, there are no grounds to interfere with concurrent findings of the Courts below. There is no substantial question of law for admitting the appeal. 12. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU 9th February, 2011 AMD