Case: Madan Gopal Bhatnagar Vs. Smt. Jogya Devi and Others

This appeal by special leave which is directed against the judgment and order dated November 17, 1976 of the High Court of Judicature at Allahabad in S.A. No. 886 of 1975, raise a very interesting question of law viz. whether a lessee of land taken by him for building a house can for his own benefit acquire an easement of way or of flow of water over other land of his lessor. Though this question seems to have arisen a number of times in different High Court of India, it is a question of first impression so far as this Court is concerned as it was left open in Chapsibhai Dhanjibhai Danad v. Purushottam ((1971) 2 SCC 205   : 1971 Supp SCR 335 : AIR 1971 SC 1878  ).2. For a proper determination of this question, it is necessary to refer a few provisions of the Indian Easements Act, 1882 (6 of 1882) (hereinafter called the Act).

Reasoning: 11. In view of the foregoing, we have no hesitation in holding that the High Court was right in disallowing the claims of the appellant and restoring the decision of the trial Court in reversal of the decision of the lower appellate Court. We must, however, make it plain that we say nothing in respect of a tenants right of acquisition of easement of light and air or support for the building erected by him on the leasehold, as we are not concerned with the same in the present case. We would also like to add that it quite often happens that in many States, land reforms measures confer the substantial part of the ownership on tenants leaving only the husk of landlordism in the landlord himself. In such a situation, the question may well arise whether the principle of acquisition of easements by the tenant who is the substantial owner, is permissible or not over landlords other lands. This question need not engage us here because the appellant is not any such tenant.