Partly allowed

Sibabhai v. Sabitribai

Orissa HC3 Apr 2018SA/54/1993

Case brief

AI extract

What is this about?

Second appeal against a lower appellate court judgment allowing an easement suit. The High Court set aside the award of damages due to lack of evidence but partly allowed the appeal on the maintainability of the suit against private defendants and the validity of the easement right over government land.

What did the court decide?

Damages awarded by lower appellate court set aside; appeal on easement rights allowed.

Sibabhai Vs Sabitribai — Property and Title | Orissa HC (2018)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.54 of 1993

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From the judgment and decree dated 23.11.92 and 3.12.1992 respectively passed by Shri S.K. Das, learned Subordinate Judge, Titilagarh in T.A. No.1 of 1992 reversing the judgment and decree dated 23.12.91 and 16.1.92 respectively passed by Shri Himansu Sekhar Brahma, learned Addl. Munsif, Kantabanji in T.S. No.2/23 of 1989-91.

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Sibabhai Chawan and others ……….…….… Appellants ---versus— Sabitribai Jain …………..….… Respondent For Appellants : Mr. Budhiram Das, Advocate For Respondent : None

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J U D G M E N T

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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----------------------------------------------------------------------------------Date of Hearing :03.04.2018 │ Date of Judgment:03.04.2018 -----------------------------------------------------------------------------------

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Dr. A.K. Rath, J. This is a defendants’ appeal against reversing judgment.

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2. Plaintiff-respondent instituted the suit for declaration of easementary right, permanent and mandatory injunction and damages to the tune of Rs.1000/-.

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3. The case of the plaintiff was that she purchased the suit schedule land from one Chhuni Rai Karamsi Padharia by means of a registered sale deed dated 14.5.85. Since then, she is in possession of the suit land. Taking advantage of her temporary absence, the defendants started construction on a portion of the suit land and adjoining suit land. By such construction, the defendants damaged the wall standing over the suit land. It was further pleaded that in

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the event the defendants will make construction, her right to use free light and air will be impaired and she will have no way of passage. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

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4. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants was that since 1956, they had a shop over plot no.40, adjacent to the suit land. The N.A.C., Kantabanji granted licence. No new construction was made by them. They repaired the existing shop. They denied the plaintiff’s easementary right or right of passage, air and light over the suit land. The suit was bad for misjoinder and non-joinder of parties.

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5. Stemming on the pleadings of the parties, learned trial court struck thirteen issues. Parties led evidence, oral and documentary, to substantiate their respective cases. Learned trial court dismissed the suit with findings that the plaintiff had got right, title and interest over the suit land. Plaintiff has no easementary right of passage over the land where the defendants constructed the wall. The wall constructed by the defendants was neither on the suit land, nor the same caused any damage to the plaintiff. The defendants had their cabin on the place since 1956. The land, where defendants constructed the shop, belongs to the Government. The suit is bad for non-joinder of the State of Orissa and N.A.C., Kantabanji. Felt aggrieved, the plaintiff filed T.A. No.1 of 1992 before the learned Subordinate Judge, Titilagarh. Learned appellate court came to hold that the plaintiff has the easementary right of passage over the land, where the defendants constructed the wall. The ROR shows the land to be a path. The plaintiff’s compound wall was having a door to that side and defendants have obstructed the

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same by constructing wall. Plaintiff has the easementary right of air and light. Plaintiff is entitled to damages since there was a damage of few inches of plaintiff’s wall. It held that the suit is not bad for non-joinder of the State of Orissa and the N.A.C., Kantabanji since no obstruction was caused by them. Held so, it allowed the appeal.

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6. The second appeal was admitted on the substantial questions of law enumerated in ground nos.A and C of the appeal memo. The same are:

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“(A) For that the plaintiff claimed declaration of her right of easement over the land which the courts below found to belong to the State of Orissa and the N.A.C., Kantabanji. Therefore, the servient owners being the State and the N.A.C. whether the suit for declaration of easementary right was maintainable without impleading the State and the N.A.C. as parties thereto and whether the lower appellate court was justified in saying that there was no cause of action against the State and the N.A.C.

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(C) Whether the lower appellate court was justified in giving a finding that the plaintiff has right of air and light, without discussing the evidence in that regard particularly when it reversed the finding of the trial court ?”

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7. Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellants. None appears for the respondent.

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8. Mr. Das, learned counsel for the appellants, submits that there is no evidence on record that the plaintiff’s vendor was using the suit land as a passage to the plaintiff’s plot. Learned appellate court committed a manifest illegality in relying upon the R.O.R., Ext.E. R.O.R. neither creates title nor extinguishes title. The finding of the learned appellate court that the plaintiff has right, title and interest over the suit land is perverse. He further submits that

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N.A.C. is a servient owner. In the absence of N.A.C., the suit is not maintainable.

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9. Learned appellate court held that in the absence of any allegation of obstruction being caused to the easementary right of the plaintiff by the Government of Orissa or N.A.C., Kantabanji; the plaintiff had no cause of action against them. The land in question is a public road. The plaintiff’s easementary right was obstructed by construction of the wall on the suit land by the defendants. The plaintiff had cause of action against the defendants only. There is no perversity or illegality in the said finding. But then, learned appellate court is not justified in allowing damages in the absence of any evidence on record. That part of the judgment is set aside.

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10. The matter can be examined from another angle. No person has any right to make a construction over the land belonging to the Government of Orissa/N.A.C. and obstruct the easementary right of the persons residing in the locality. The substantial questions of law are answered accordingly.

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11. Resultantly, the appeal is allowed in part. No costs.

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Dr. A.K. Rath,J.

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Orissa High Court, Cuttack

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The 3^rd April, 2018/Basanta

Sibabhai v. Sabitribai

Case brief

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Sibabhai v. Sabitribai

Case brief

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