Partly allowed

Smt. Kesar Kashinath Naik and 2 Ors. v. the Asst. Engineer, Pwd., Kakoda and 9 Ors.

Bombay HC2 Dec 2011FA/195/2005

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a civil suit for declaration and mandatory injunction regarding a landlocked plot, the High Court of Bombay at Goa held that the plaintiffs acquired a prescriptive right and an easement of necessity over the only access road. The appeal against the lower court's order dismissing the easement claims was partly allowed.

What did the court decide?

The impugned judgment and decree dated 29/06/2005 is quashed; the civil suit stands decreed in terms of the prayers made therein for declaration and injunction.

Smt. Kesar Kashinath Naik and 2 Ors. Vs the Asst… — Property and Title | Bombay HC (2011)

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IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI

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FIRST APPEAL NO.195/2005

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Smt. Kesar Kashinath Naik, W/o late Kashinath Naik, Major, housewife, R/o House no.514, Baagwada, Curhcorem-Goa. 2. Shri Manohar Kashinath Naik, Major, service. 3. Shri Manoj Kashinath Naik, Major, service, Both s/o Kashinath Naik and R/o House no.514, Baagwada,

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Curchorem Goa. … Appellants.

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V e r s u s 1. The Assistant Engineer, PWD, Bansai, Kakoda, Goa Water Department.

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The Chief Secretary, Government of Goa, Secretariat, Panaji-Goa.

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Mr. Yeshwant Shiva Naik, S/o Shiva Naik,

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Major, married, retired, R/o House No.512, Baagwada, Curchorem Goa.

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Mr. Uday Manguesh Sinai Kudchadkar,

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Major of age, R/o House.No. Not known, Shirfod, Cuchorem Goa.

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5.	Mr. Sudhakar Bhikaji Naik, Major of age, R/o House No., not known Shirfod, Curchorem Goa.
6.	Mr. Dinkar Janardhan Kudchadkar, Major of age, R/o House No. not known,
	Bepquegal, Curchorem Goa.
7.	Mr. Milind Vaman Sinai Kudchadkar, Major of age, R/o House no. not known, Shirfod, Curchorem Goa.
8.	Mr. Shantesh Lavu Sinai Kudchadkar, Major of age,
	R/o House No. not known, Bansai, Kakoda-Goa.
9.	Dr. Kusha Raghuvir Sinai Kudchadkar, Major of age, R/o House No. not known, Borda, Margao-Goa.
10	. Mr. Uday Ganesh Sinai Kudchadkar, Major of age, R/o House No. not known,
	Bepquegal, Curchorem Goa. …. Respondents.

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Mrs. A. Agni, Advocate for the Appellants. Mr. Amey Kakodkar, Advocate for the respondents no. 1 and 2. Mr. C.A. Coutinho, Advocate for the Respondent no. 3. None present for Respondents no. 4 to 10.

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CORAM: U. V. BAKRE, J. RESERVED ON: 25/11/2011 PRONOUNCED ON:2/12/2011.

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JUDGMENT:

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This is an appeal by the plaintiffs against dismissal of their Civil Suit No.38/2004 (New) or Regular Civil Suit No.24/03/A (Old), and contempt applications filed by them. The said suit was for declaration and mandatory injunction.

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The parties shall be referred to in the manner as they appear in the cause title of the impugned Judgment.

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The case of the plaintiffs, in short, is as follows:

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The plaintiff no.1 purchased a plot admeasuring 220 square metres from survey no. 8/3 of Curchorem village

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by deed of sale dated 11/12/1995 which plot is part of the property known as “Cormolem Vorti Madacho Xiro.” Even prior to the execution of the said sale deed, the plaintiff no.1 and her family members were occupying their dwelling house situated in the said plot for the last more than 60 years. The access to the said property of the plaintiffs from the main road, Baagwadda, Curchorem to station, passes by the side of the compound wall of Tendulkar, thereafter by the side of the property of defendant no.3 and thereafter from the property of one Janardhan Kudchakar and others, which is the suit access. The suit access, passing from survey holdings no. 8/4 and 8/5 of Curchorem Village, is the only approach road for the plaintiffs as ingress and egress to their residential house and without the suit access, their plot is land locked. The property surveyed under nos. 8/2, 8/3, 8/4 and 8/5 of village Curchorem was common property of Kudchadkar family, which property was divided by oral partition without

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maintaining proper access to the independent house-holders and therefore the access already in use by the plaintiffs and others continued to be used from the beginning and as such the suit access remained as the only access for the plaintiffs and others. The road shown at the extreme southern end of the plot of the plaintiffs is not existing as the same has collapsed on account of depth of about 10 metres near the said road at river level and it is not possible to carve out any new road from all three sides of the plaintiffs' plot, which position is prevailing for the last more than 50 years. The plaintiffs have been using the suit access having width of 2 metres for the last more than 20 years without any objection or interruption or obstruction from any person and as of right and thus they have acquired prescriptive right over the same. The defendant no.3 approached the defendants no. 1 and 2 to provide a sulabh toilet and on 15/3/2003, the third defendant started digging pits on the suit access for constructing sulabh toilet and bath room. The plaintiffs

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initially complained to the municipality whereby construction was stopped. On 4/4/2003, the defendant no.3 once again commenced the construction and constructed a temporary structure as bathroom and dug pits for the toilet on the suit access.

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Hence, the plaintiffs filed the said suit inter-alia with the following prayers:

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(a) It be declared that suit access is only access for

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the plaintiffs to ingress and egress the residential house of the plaintiffs as shown on the plan annexed to the sale deed dated 7/12/1995 registered under no.507 dated 11/12/95;

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(b) That defendant no.3 be restrained from undertaking any construction work or obstructing the suit access in any manner whatsoever;

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the suit access as shown in the plan annexed to the sale deed;

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(d) For mandatory injunction directing the defendant no.3 to remove the structure of palm leaves used for bathroom on the suit access and to

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restore the suit access in its original position.

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By order dated 16/4/2004, this High Court had directed maintenance of status-quo qua the suit access. The plaintiffs as well as the defendant no.3 had filed contempt applications. The plaintiffs contended that defendant no.3 violated the order of the High Court by removing the old bath room and constructing bath room on the suit access and continuing with the construction of the toilet on the suit access. The defendant no.3 alleged that the plaintiffs violated the High Court order by illegally demolishing the bath room of the defendant no.3.

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The plaintiffs, by way of amendment to the plaint,

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added all the said subsequent events to the pleadings and

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also added a prayer for directing the defendant no. 3 to remove all the structures and trench made on suit access during the pendency of the suit and to restore the suit access to its original position to ingress and egress residential house from the property of the defendant no. 3.

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The defendants no. 1 and 2, in their written statement, alleged that the defendant no.3 had approached the respective municipality and after fulfilling all the requirements, the municipality had recommended the construction of sulabh toilet.

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The defendant no.3, in his written statement,

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alleged as follows:

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There is no suit access as defined by the plaintiffs

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and that the road from the main road which enters by the

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side of the wall of Tendulkar is being used by defendant no.3 and his family members exclusively for the last many years. The plaintiffs, in order to go to their house, have been using the access which passes in front of the house of one Dharmu Naik and also have been using the other access, but there is no access for the plaintiffs from the property of defendant no.3. The bath room has been existing at the same place since long.

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The defendant no. 3 filed additional written statement thereby denying the averments made by the plaintiffs, by way of last amendment and regarding subsequent events, referred to in paragraph 5 above. .

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Inquiry was held in the contempt applications. Both the parties led evidence. Both the parties could not prove their allegations. The learned trial Judge by order dated 22/12/2004, dismissed all the contempt applications.

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The plaintiffs and the defendant no. 3 then led evidence in the suit. The plaintiffs examined the plaintiff no. 3 as PW-1, Civil Engineer, Shri Vilas Raikar as PW-2, and four more witnesses. The defendant no. 3 examined himself as DW-1 and his daughter-in-law, Smt Deepa, as DW-2.

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The learned trial Court, while dismissing the plaintiffs' suit, has inter-alia held as follows:

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(i) That there was permissive use of the said access by plaintiffs and the same did not come within the the purview of 'acquisition by prescription'.

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(ii) That there is vague plea in the plaint about the easement of necessity and about oral partition and there is no sufficient evidence on record to prove easement of necessity.

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(iii) The defendant no. 3 constructed a temporary structure as a bathroom on the suit access and also dug

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pits on the suit access for constructing sulabh toilet with the result that the plaintiffs are not able to use the suit access.

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(iv) The defendants have failed to prove that the suit is bad for non-joinder of necessary parties and mis-joinder of parties.

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(v) The defendant no. 3 has not proved that they have constructed the bathroom in front of their house

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about more than 25 years back.

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In this appeal, the plaintiffs have challenged the Judgment and decree dated 29/6/2005 passed in the suit as also the said order dated 22/12/2004 passed in the contempt applications. The plaintiffs, while praying to set aside the said order on contempt applications, have also prayed to strike off the defence.

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Heard arguments. Learned Advocate Mrs. A.

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Agni argued on behalf of the plaintiffs whereas learned Advocate, Mr. C. A. Coutinho argued on behalf of defendant no. 3. Mr. Amey Kakodkar, the learned counsel for the defendants no. 1 and 2 stated that his parties would be bound by the decision of the Court.

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Learned Advocate Mrs. Agni argued that the evidence on record sufficiently proves that the use of the suit access by the plaintiffs has been established to be “as of right” and that it is also established that there is no other access available to the plaintiffs to approach the main road through their plot and lastly the said user has been established to be over thirty years since prior to the filing of the suit. She, therefore, contended that the suit ought to have been decreed. The learned counsel for the plaintiffs has relied upon the following decisions:

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(i) Babli Krishna Vaigankar & anr. Vs. Laxman Sagun Vaigankar & anr, [2006 (5) Bom. C..R

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(ii) Maniyan Krishnan and anr. Vs. Maniyan Nanukuttan, (AIR 1986 Kerala 75); and (iii) Hero Vinoth (minor) Vs. Seshammal, [(2006) AIR SCW 2833].

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As far as the challenge to the order on contempt applications, learned Advocate Mrs. Agni was not very keen. However, She wants this court to consider the evidence led in the contempt applications.

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On the contrary, Shri Coutinho, the learned

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counsel for the defendant no. 3 argued that there are no required pleadings in the plaint for claiming easement of necessity and therefore, the suit is essentially based on the stand of easement by prescription, for which also there are no sufficient pleadings. He argued that there is no evidence

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regarding the alleged oral partition and even if it be there

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then also there is no evidence of user of the suit access,”as of right” for more than 20 years. As far as the plan

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annexed to the sale deed dated 1/9/1995 of the plaintiffs, which shows the suit access, is concerned, Shri Coutinho argued that this sale deed/plan cannot bind the defendant no.3 and the sale deed of the defendant no. 3, which is of the year 1991, does not show the suit access. On the aspect of the easement of necessity, the learned counsel was of the view that there is no evidence to establish prior jointness of the ownership and of the plots. He relied upon the following citations:

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(i) Bachhaj Nahar Vs. Nilima Mandal and anr. [(2008) 17 S.C.C.491].

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(ii) Ramchandra Trimbak Joshi Vs. Hari

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Martand Joshi,( AIR 1929 Bom. 144). (iii) Tukaram Rajaram Suple and Ors. Vs. Sonba Chindhu Mali,( AIR 1959 Bom. 63).

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(iv) Lambodar Panda and Ors. Vs. Ramesh Chandra Panda and Ors. (AIR 1958

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Ori. 248).

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(v) Abdul Rashid and Ors. V/s. B. Braham

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Saran (AIR 1938 ALL 293).

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(vi) Macario Antonio Francisco de Cunha

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V/s. Alex Fred D'Souza

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[1993(1)Bom.C.R. 465].

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(vii) Smt Usa rani Das V/s. Bhaktahari Mohanty and Ors. (AIR 1984 Ori. 97).

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(viii) Ibrahimkutty Koyakutty V/s. Abdul

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Rahumankunju Ibrahimkutty and Ors. (AIR 1993 Ker.91).

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(ix) Santosh Kumar Banerjee V/s. Krishna Kant Gupta and anr.(AIR 1985 Pat.124)

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I have gone through the entire material on record in the light of the arguments advanced by both the parties.

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Let us first consider whether the easement by

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prescription has been proved.

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(A) In the case of “ Bachhaj Nahar” (supra), relied upon by Shri Coutinho, it has been held that a court cannot assume or infer an easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence because there are various kinds of easements. It is also held that a right of easement can be declared only when the servient owner is a party to the suit.

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It has been further observed that in regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years(ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission

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of the owner will be a licence and not an easement.

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(B) In the case of “ Ramchandra Trimbak Joshi”

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(supra), relied upon by Shri Coutinho, the learned Advocate for defendant no.3, it is has been observed as follows:

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“In questions regarding a right of way, the Court should consider the character of the ground, the space for which the right is claimed, the relations between the parties and the circumstances under which the user took place to decide whether the user was “as of right”.

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(C) In the case of “ Tukaram Rajaram Suple and

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Ors.” (supra) also relied upon by Mr. Coutinho, it has been held as follows:

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“ On the plaintiff's leading evidence to prove uninterrupted user of a right of way for more than twenty years, the Court cannot straightaway draw a presumption that the user is as

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of right under Section 15 of the Indian Easements Act, 1882. It is for the Court to consider whether a presumption can be

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reasonably drawn looking to the circumstances of each case, such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the use has taken place.

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(D) In the case of “Lambodar Panda” (supra), in paragraph 6, it has been observed that there is no need of specific averment in the written statement of the defendants that the user of the pathway by the plaintiffs was a permissive user. In paragraph 8, it is observed that the authorities discussed clearly establish that the person claiming a right of way should prove that the user was as of right and that according to the conditions in India, the relationship of the parties and the circumstances of each particular case, there is a presumption that the user is permissive.

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A combined reading of paragraph 4 of the plaint

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and paragraph 2 of the written statement of defendant no.3

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clearly reveals the undisputed existence of the access, referred to by the plaintiffs, as the “suit access”. The defendant no.3, however says that the plaintiffs have never used the said road (suit access) as referred to in paragraph 4 of the plaint and that the said road is exclusively used by the defendant no.3 and his family members. Therefore, first of all, the existence and identification of the suit access cannot be in dispute.

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Even otherwise, there is on record, the evidence of the Civil Engineer, Shri Vilas Raikar, PW.2 at Exhibit C- 71 and the plan drawn by him on 31/7/2004 and proved by him which is at Exhibit 73 showing the suit access, as described in the plaint, in yellow colour and the obstruction of the same by means of a structure, with red colour and another plan Exhibit 68, also drawn and proved by PW-2, in order to show that the structure shown in red colour in plan, Exhibit 73 was shifted to the place showing the structure in

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green colour, in the plan, Exhibit 68. The existence of the suit access in yellow colour and the structure in red colour, as shown in the plan Exhibit 73, is not denied. There are also photographs (Exhibit 56-colly), produced by PW.1, who is plaintiff no.3, showing the suit access. PW2, Vilas Raikar saw the beaten marks having length of 33 metres and width of 1.8 metres which width, somewhere, was of 1.9 metres.

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The learned trial judge has not held that there are no sufficient pleadings in the plaint for claiming the easement by prescription. In paragraphs 7, 8 and 9 of the plaint, there are required pleadings to make up for the claim of easement by prescription. The evidence produced by the plaintiffs on record through the plaintiff no. 3 and other witnesses establishes the user of the suit access by the plaintiffs for more than 30 years since prior to the filing of the suit. The learned trial judge has held that the user, though was for

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more than 20 years, cannot be termed as “as of right”.

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The question is whether the said user fulfills the ingredients of section 15 of the Indian Easements Act (said Act), to hold it as an easement by prescription.

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Learned Advocate Shri C. A. Coutinho, on behalf of the defendant no. 3, has pointed out that in his crossexamination, PW-1 has stated as follows:

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“ I came to know from my parents that oral

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partition was done by Kudchadkar family

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about 20 years back, without maintaining prope r access as stated in para 10 of my affidavit”.

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He therefore contended that the oral partition had taken place in or about 1985, since the deposition of PW-1 was recorded on 23/2/2005. He pointed out that the definition of

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“dwelling house” under the Goa Mundkars (Prevention from Eviction) Act, 1975 includes the customary easement which

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the residents of the dwelling house have been enjoying for access to a public road or any well or any other place. According to the learned counsel, therefore, the user as “mundkars” should be taken as with the consent of the bhatkars due to which time of 20 years period, for the purpose of prescription, would start running from 1/9/1995, when the plaintiffs became owners or at the most from 1985 when the oral partition allegedly took place. He argued that since the suit is filed on 5/4/2003, in either case, the claim of easementary right by prescription is premature since 20 years period is not complete. The learned trial Judge in paragraph 8 of the impugned judgment has observed that in the sale deed dated 1/9/1995, by which the plaintiffs purchased their plot, it is clearly mentioned that in the purchased plot, late Kashinath Naik is already having his house and that the purchasers are the mundkars of the said dwelling house and that the vendor Vaikunth Kudchadar was the co-owner of the area over which the suit access is

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alleged to have existed. The learned trial Judge has held that being mundkars and having their dwelling house in the plot which was purchased afterwards, the plaintiffs had been using the suit access not with the requisite animus but because they were mundkars or in other words, their user, though more than 20 years, cannot be termed, “as of right” because no animus was involved in their physical act because the user was with the consent/permission and sufferance of the vendor Vaikunth Kudchadkar and other coowners. The learned trial Judge has held that such permissive use without animus was not as of right and hence does not come within the purview of acquisition by prescription.

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With regard to the above, the contention of Mrs. Agni, the learned counsel for the plaintiffs, is that the suit access does not belong to her vendors( previous owners) and that 36 years prior to the sale deed dated 1/9/1995, the

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property was partitioned and hence the plaintiffs are not claiming right as against their owners. As far as the statement of PW-1, made in his cross-examination and pointed out by the learned Advocate for the defendant no. 3, learned Mrs. Agni contended that what PW-1 wants to say is that he gained knowledge of the said oral partition, from his parents, about 20 years back. There is substance in the above contention of the learned counsel for the plaintiffs.

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The learned trial Judge has lost sight of the fact that as on the date of the said sale deed i.e. on 1/9/1995, the vendors of the plaintiffs were not the co-owners of the plot through which the suit access passes. The plaintiff no.1 purchased the plot by the sale deed dated 1/9/1995, which is at Exhibit 69. The suit was filed by the plaintiffs on 5/4/2003. The sale deed Exhibit 69 mentions that the plaintiff no.1 was the mundkar of the vendors for a number of years. The sale deed Exhibit 69 further states that the

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house situated in that plot was owned by the plaintiff no.1. Though the plaintiffs were staying in their dwelling house situated in the plot belonging to Vaikunth Sinai Kudchadker as mundkars, however, the suit access is not situated in the same plot. The sale deed (Exh. 69) states that the vendors acquired absolute title to the plot which is subject matter of the sale deed, as per the allotment made in oral partition held more than 36 years, prior to the date of the sale deed that is prior to 1/9/1995. This statement incorporated in the sale deed, Exhibit 69 is not specifically denied by the defendant no. 3. Be that as it may, the right persons to deny this fact were the defendants-Kudchadkars, who have not even filed any pleadings. When the sale deed produced by PW-1 himself says that the oral partition took place about more than 36 years back, there is no reason for him to say in the cross-examination that the oral partition took place about 20 years prior to the date of his deposition. It appears that by means of the said statement of PW-1 about oral

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partition which has been pointed out by learned Advocate Shri Coutinho, PW-1 wanted to say that he learnt about the said oral partition from his parents about 20 years back, as has been contended by learned Advocate Mrs. Agni. May be the user of the suit access during the time when the entire property, including the plot purchased by the plaintiff no.1 and the plot of the defendant no. 3 over which the suit access passes, was a single joint unit, was as customary easement and thus permissive, being mundkars of coowners, but that was more than 36 years prior to 1/9/1995. After the partition of the property, the user of the suit access by the plaintiffs cannot be in the capacity as mundkars since they were no more mundkars of the owners of the plots through which the suit access passes. The plaintiffs, after the partition of the property, became mundkars only of their vendors. This aspect is not considered by the learned trial Judge.

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It was pointed out that PW-1, in his cross examination, has stated that he had never written to the owners of the land, upon which the suit access is existing, to allow them to use the suit access in writing, because the bhatkar never objected to their using the suit access from the beginning. It was further pointed out that PW-4, who is admittedly a relative of the plaintiffs, has stated in his crossexamination that Dinkar Kudchadkar has not given written consent to them to use the access from his property but he has given them oral permission. On account of the above also, it is contended that the user was permissive. In this regard, the case of the defendant no. 3 is not that there was permissive use of the suit access. His case is that the plaintiffs never used the suit access. Therefore, stray sentences, here and there, in the deposition of witnesses who

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are laymen , would not prove the user as permissive.

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The decision in the case of “Lambodar Panda”

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(supra), wherein it was held that there is presumption that user is permissive, was reversed by the Orissa High Court in

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“Ramesh Chandra V/s. Lambodar” (AIR 1960 Orissa 95) and it was held that where the plaintiff was using the pathway openly and peaceably to the knowledge of the defendant without interruption for over 20 years, the presumption would be that he had been using the same as of right, particularly when the defendant never pleaded that the user was permissive or by sufferance. The above has been mentioned in paragraph 19 of the case of “Manyan Krishnan” (supra), relied upon by the learned counsel for the plaintiffs. In said paragraph 19, there is reference to the case reported in AIR 1917 386, wherein it was held that where a user is proved, the presumption is that it is as of right, until the contrary is proved. There is also a reference to the case of “Ratanchand V. Kasim Khaleeli” (AIR 1964 Mad 209) wherein it was held that long continued user gives rise to a presumption, which, however is rebuttable by proof

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to the contrary, that it must have been as of right and not with the leave and licence of another. There is further reference to the case of “K. Pulaniappa Moopan V. Angammal” (1967)1 Mad LJ 177, wherein it was held that when user is established the presumption is that it is as of right until the contrary is proved.

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It is also observed in the case of “Manyan Krishnan” (supra), that the appellants now cannot turn round and say that the user was permissive when they have never given permission to the respondent to use any portion of his property as a pathway.

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In my view, there is no substance in the contention that there are no proper pleadings and no sufficient evidence to prove oral partition of the property. There is averment in paragraph 1 of the plaint regarding the sale deed by virtue of which the plaintiffs became the owners of the plot. This sale deed (Exh. 69) states that the vendors acquired absolute

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title to the said property as per the allotment made in the oral partition held more than 36 years back amongst the sons of Ladco Sinai Kudchadkar. In paragraph 5 of the plaint it is pleaded that the suit access passes from survey holdings no. 8/4 and 8/5 of Village Curchorem. By way of amendment to the plaint, allowed by order dated 8/7/2009, passed by the trial judge, the plaintiffs have added paragraphs 5a to 5c to the plaint and have pleaded in paragraph 5c that the property surveyed under nos. 8/2, 8/3, 8/4, and 8/5 was common property of Kudchadkar family which was divided by oral partition, without maintaining proper access to independent house holder and therefore access already in use by the plaintiffs and others was continued from the beginning and as such, suit access remained as only access for the plaintiffs and others. The above has not been denied by the defendant no. 3 at all since no additional written statement consequent upon this second amendment, was filed by him. The other defendants have

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also not denied these facts. PW-1 has stated all the above facts in his affidavit-in-evidence. DW-1, the defendant no. 3, in his cross-examination, has deposed as follows:-

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“ I have purchased my plot from Shri Mangesh Kudchadkar. It is true that Mangesh

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judchadkar, Dinkar Kudchadkar Milind Kudchadkar

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and Devidas Kudchadkar are from common family members. and are from one house. The property where I am residing and that in occupation of plaintiff

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Mangesh Vishram is the property of Kudchadkar families. Before purchase of my plot I used to ingress

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and ingress my residential house since there was only access for me from the said plot, and this plot is touching to the compound of Tendulkar. The plot purchased by Tendulkar is also from Kudchadkar family. Vishram has also constructed compound wall.

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to his plot. and he also purchased from Mangesh Kudchadkar. It is true that there is access road in

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between Tendulkar compound and compound of Vishram. and same is touching to public road proceeding to station. It is true that main public road proceeding to the station touching to the access is the only road in Curchorem ward for the public.”

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It is therefore established that there was oral partition of the common property amongst the family members of Kudchadkar. The testimony of DW-1, who was also a mundkar, goes to show that when the property was joint, even he was using the same access touching the compound walls of Tendulkar and Vishram Kudchadkar and touching the public road proceeding to station and this was the only access for him.

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Even taking into account the principle laid down in the case of “Tukaram Rajaram Suple” (supra), relied upon by the learned counsel for the defendant no. 3, I am of the

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view that the uninterrupted user of the suit access, by the plaintiffs, for more than 30 years, sufficient to reasonably draw the presumption that the user was as of right, has been established.

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I therefore hold that the plaintiffs have proved that

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the suit access has been used by them as an easement peaceably, as of right, openly, for a period of more than 20 years, without interruption and therefore they have acquired prescriptive right to the same.

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The next question is whether the user of the suit access by the plaintiffs fulfills the ingredients of section 13 of the Indian Easements Act, to hold it as an easement of necessity.

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In the case of “Babli Krishna Vaigankar' (supra), relied upon by the learned counsel for the plaintiffs,

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the learned single Judge of this court has held that the contention that plaintiffs were only mundkars of land and not the owners of property and therefore their right to use access was only permissible and not a prescriptive right, would not hold ground because the plaintiffs are claiming this right not as mundkars but as an easement of necessity which they proved were using for over 58 years. In the present case also, the plaintiffs are not claiming the suit access as mundkars of the property but as an easement of necessity, in addition to the claim of easement by prescription.

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In the case of “ Maniyan Krishnan” (supra) , it is observed thus:

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“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

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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 of implied grant to create an easement of necessity are well delineated in the action 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. Such easement arises where normally both the dominant and servient tenement 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

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common ownership that gives rise to the creation of an easement, may be of either tenement, or a simultaneous disposition of both tenements”

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Relying upon the case of “Bachhaj Nahar” (supra), the learned counsel for the defendant no.3 argued that there are no pleadings in the plaint for claiming an easement of necessity. In the said case, it has been observed that for claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and the defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there

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has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. In the case of “Ibrhimkutty Koyakutty”( supra),

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it has been held that an easement is a precarious and special right claimed over the land of another and the party

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claiming or relying on an easement should plead the nature and origin of the same specifically. In this regard, in paragraph 5 of the plaint , it is pleaded that the suit access is passing from survey holdings no. 8/4 and 8/5 of Curchorem village and that the same is the only access for the plot of the plaintiffs to approach the residential house from the main road leading from Baagwada to station. In paragraph 5c of the plaint, it is pleaded that the property surveyed under survey nos. 8/2, 8/3, 8/4 and 8/5 of village Curchorem was common property of Kudchadkar family, but the same was divided by oral partition. The plaintiff no. 1 has purchased his plot from Vaikunth Kudchadkar and his wife which bears survey no. 8/3 whereas the defendant no. 3 has purchased his plot from Manguesh Kudchadkar and his wife and it bears survey no 8/5. As already stated above, the facts pleaded in paragraphs 5a to 5c of the plaint are not denied by the defendants. Therefore, there are required pleadings in the plaint to claim the easement of necessity.

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Mr. Coutinho, the learned counsel for the defendant no. 3 showed from the sale deed of the plaintiffs that the oral partition referred to therein was amongst the sons of Ladco Sinai Kudchadkar, the plaintiff no. 1 being one of them, but the defendant no. 3 is not one. He therefore argued that the oral partition referred to by the plaintiffs is private one in which defendant no. 3 or his ancestors had no participation. He further showed that the property concerned in the sale deed of the plaintiffs bears Land registration no. 10718 of Book B-30 at pages 178V and Matriz no. 191 whereas the property concerned in the sale deed of the defendant no. 3 bears Land registration no. 6346 and Matriz nos. 288 and 299. The learned counsel for the defendant, therefore, argued that the plots purchased by the plaintiff no. 1 and the defendant no. 3 are not from one common property but from distinct and separate properties. Relying upon the provision of section 13 of the Easements Act and paragraph

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9 of the judgment in the case of “Maniyan

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Krishnan” (supra), learned Shri Coutinho argued that there being no former jointness of the plots and also no previous joint ownership, the question of application of easement of necessity does not at all arise. In the case of “Santoshkumar Banerjee” (supra) relied upon by the learned counsel for the defendant, it has been held that the right of easement of necessity does not arise in a case in which the property becomes useless without an easement being raised in favour of the party claiming it and that the right is implied only in cases of severance of tenements and unity of ownership of dominant and servient tenement at some time or other was essential. In the case of “Smt Usarani Das” (supra), relied upon by Shri Coutinho, it has been held that an easement of necessity according to section 13 of the Indian Easements Act arises only where by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenements and any of the separate

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tenements is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements.

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The defendant no. 3 (DW-1) has purchased his plot from a single owner who is from Kudchadkar family and not from co-owners. He has purchased the plot from Manguesh Vinayak Sinai Kudchadkar and his wife. In his cross-examination, DW-1 has admitted that Manguesh Kudchadkar, Dinkar Kudchadkar, Milind Kudchadkar and Devidas kudchadkar are common family members from one house. He has further admitted that the property where he is residing and that which is in occupation of the plaintiffs as also in occupation of Manguesh, Vishram is the property of Kudchadkar family. He has stated that before purchase of his plot, he used to have ingress and egress to the residential house from the plot which was touching to the compound wall of Tendulkar. He has stated that the plot

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purchased by Tendulkar is also from Kudchadkar family. DW-1 has stated that Vishram who has constructed compound wall to his plot, has also purchased the said plot from Manguesh Kudchadkar. DW-1 has admitted that there is access road in between Tendulkar compound and compound of Vishram and the same touches the main public road proceeding to station. Then, there are undisputed pleadings in paragraph 5c of the plaint that the property surveyed under nos. 8/2, 8/3, 8/4 and 8/5 of Village Curchorem was common property of Kudchadkar family, which was divided by oral partition. From the above admissions in the oral evidence and the pleadings which have not been denied, since the above survey holdings are continuous, it can certainly be said that originally there was jointness of property as well as of ownership and then there were oral partitions amongst the ancestors and thereafter amongst their children, and so on. Section 13(b) of the Indian Easements Act provides that where one person

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transfers or bequeaths immovable property to another, if an easement in other immovable property of the transferor or testator is apparent and continuous and necessary for enjoying the subject of the transfer or bequest, 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, be entitled to such easement. Section 13(e) of the said Act provides that where a partition is made of the joint property of several persons, 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. The easement which the vendors of the plaintiffs used to enjoy passed on to the plaintiffs and the burden which the vendors of the defendant no. 3 used to bear passed on to the defendant no. 3. The case of the plaintiffs is covered by the above clauses of section 13 of the said Act. There is therefore no force in the submissions made by the learned Advocate for the defendant no. 3,

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referred to in paragraph 38 above.

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In paragraph 3b of the plaint, the plaintiffs have averred that the road shown at the southern end of the plot of the plaintiffs is not existing at all since the same has collapsed on account of depth of about 10 metres near the said road at river level. The above facts, as incorporated in the plaint, by way of second amendment, have not been denied. No additional written statement has been filed in answer to the said amendment. PW-1, in his affidavit-inevidence, has stated the said facts. The survey plan is at Exhibit 90. It does not show any road on the southern boundary of the plaintiffs' plot. The public road, shown on the survey plan, is to the extreme southern end of survey holding no. 8/5. It is nobody's case that there is any public road touching the southern boundary of the plaintiffs' plot. If such road had existed, the plaintiffs would never have filed any suit for access.

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The fact that the said road on the southern side has collapsed long back, about 50 years prior to the filing of the suit, as pleaded in paragraph 3b of the plaint and the fact that the suit access is the only access for the plaintiffs to approach the public road and other facts explaining as to how there is no other way, as averred in paragraph 5a of the plaint, are not denied. As already stated above, no additional written statements have been filed after the said first and second amendment was carried out to the plaint. In the evidence produced by the plaintiffs also, it has been clearly brought on record that the suit access is the only access for the plaintiffs to approach the public road on the northern side from their plot/residential house. The presumption in respect of the road still being shown on the southern side of survey holding no. 8/5 stands rebutted. Even otherwise, there is no convincing evidence on record to prove existence of any access from the plot of the plaintiff up to

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the said public road, on the southern side.

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The case of the defendant no. 3 regarding the accesses allegedly available to the plaintiffs, as pleaded in the written statement, is not consistent with oral evidence produced on record. The defendant no. 3 has not examined any independent witness or any expert witness to prove that there is/are other access/es, for the plaintiffs. It is not proved that the plaintiffs have any other access than the suit access.

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In view of the above, I hold that the plaintiffs have also proved their right of easement of necessity over the suit access.

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As already stated earlier, the learned trial judge has held that the plaintiffs have proved that the defendant no. 3 constructed a temporary structure as a bathroom on the suit access and also dug pits on the suit access for constructing

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sulabh toilet with the result that the plaintiffs are not able to

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use the suit access. It has also been held that the defendants

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could not prove that the suit is bad for non-joinder of necessary parties. The above findings are borne out from the record and are duly established. I have no hesitation to agree with the trial judge, regarding the above findings.

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I am of the view that the court below did not apply its mind to the questions/issues regarding the easement by prescription and easement of necessity, in the right perspective and has arrived at wrong findings, which cannot stand, in law as well as given facts. The impugned judgment and decree dated 29/06/2005, is therefore liable to be quashed and set aside.

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As far as the contempt applications are concerned,

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there were allegations and counter allegations. It was the case of the plaintiffs that the defendant no. 3 demolished the

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old bathroom and constructed the new bathroom and while doing so, extended the plinth thereof. On the other hand, the defendant no. 3 alleged that the plaintiffs demolished their bathroom in rainy season and since they had no other place to take bath and wash utensils, the family members of the defendant no. 3 had no option but to erect the bathroom in standing position without extending the plinth. The learned trial judge, after considering the entire evidence led in the said contempt applications, found that it was not fit to take any drastic action against any of the parties. The learned Advocate for the plaintiffs, in the present appeal has relied upon the evidence led by the defendant no. 3 in the suit. The order of the High Court was to maintain status quo. As on the date of filing of the suit, according to the plaintiffs themselves, a temporary structure was already existing. I am not inclined to interfere with the order dated 22/12/2004 passed by the learned trial judge in the contempt applications.

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In the result, the appeal is partly allowed.

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(a) The impugned judgment and decree dated 29/06/2005 is quashed and set aside. The Civil Suit No.38 of 2004(New) : Regular Civil Suit no.24/03/A(Old) stands decreed, in terms of the prayers made therein.

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(b) The prayer to set aside the order dated 22/12/2004, passed on contempt applications is rejected.

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( c) No order as to costs.

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( d ) Appeal disposed of accordingly.

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U. V. BAKRE, J.

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Ap/-

Smt. Kesar Kashinath Naik and 2 Ors. v. the Asst. Engineer, Pwd., Kakoda and 9 Ors.

Case brief

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Smt. Kesar Kashinath Naik and 2 Ors. v. the Asst. Engineer, Pwd., Kakoda and 9 Ors.

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