In a suit for injunction based on prescriptive easement, the plaintiff should seek declaration that he has acquired the right

Easementary right of way — It has been statutorily declared that an easement which under no circumstances can be advantageous to the dominant heritage shall cease to exist. It has been Judicially recognised that as a right of easement exists only for the beneficial enjoyment of the dominant heritage, the easement is extinguished, under Section 42 of the Act, when it becomes incapable of being beneficial to the dominant owner at any time and under any circumstances — The amendment as sought cannot be allowed in the absence of necessary parties being the owners of other survey numbers over which the easementary right of way was sought to be claimed through amendment. Further on the date of seeking amendment the plaintiffs had already lost their prescriptive right of easement over the stretch of Section 15 of the Act.

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : G.C. Bharuka, J )

PAYAPPA JAKKAPPA WAGHE — Appellant

Vs.

JAYAPAL SHRIPAL BADANEKAI — Respondent

Regular Second Appeal No. 317 of 1988

Decided on : 16-03-1995

Easements Act, 1882 – Section 15, Section 42

Cases Referred

Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, AIR 1969 SC 1267 : (1969) 1 SCC 869 : (1970) 1 SCR 22
L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., AIR 1957 SC 357 : (1957) 1 SCR 438
Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, AIR 1957 SC 363 : (1957) 1 SCR 595
D. Ramanatha Gupta Vs. S. Razaack, AIR 1982 Kar 314 : (1982) ILR (Kar) 579 : (1982) 1 KarLJ 394
Karnataka Electricity Board Vs. Oriental Timber Industries, (1993) ILR (Kar) 2072

Counsel for Appearing Parties

G.S. Visveswara, for the Appellant; Ravi S. Balikai, for R-1 and R-2, for the Respondent

JUDGMENT

Bharuka, J.—This Appeal has been preferred by the plaintiffs who had filed a suit in 1961 seeking a direction upon the defendants to close the pit or trenches dug up by them in-between their lands R.S. Nos. 371/1 and 337/3 and also for restraining them from obstructing the plaintiffs from passing over those lands with their carts and cattle. Though the suit was decreed by the trial Court, but, the said Judgment and decree has been reversed by the lower Appellate Court thereby dismissing the suit.

2. Plaintiff Nos. 1 and 2 are the owners of RS No. 375 and plaintiff Nos. 3 and 4 are the owners of RS No. 376/A and 376. According to the plaintiffs there is a way marked as ‘A.B.D.C.D.E.F.G.H.I.’ as shown in the plaintiffs’ sketch map which leads from Sadalaga Village to the land of the plaintiffs. The said way as per the map passes through 27 Survey Numbers including Survey Nos. 371/1, 377/3 owned by the defendants. Admittedly, only a part of the claimed way lying between the points G and H passes through the lands owned by the defendants. The owners of other Sy.Nos. over which the said way is claimed to be passing have not been impleaded in the present suit. According to the plaintiffs they have been using the said way since the time of their grandfather and therefore they have acquired easementary right by prescription u/s 15 of the Indian Easements Act, 1882, (herein after the Act only). Keeping in view the pleadings of the parties and the evidence adduced, the trial Court decreed the suit but the same has been reversed by the lower Appellate Court.

3. The following points were formulated by the lower Appellate Court for consideration:-

“1. Whether plaintiffs have acquired an easement by prescription from point G to H in between Sy.Nos. 371/1 and 377/3?

2. Whether suit for bare injunction is maintainable without seeking declaration for easementary right?

3. Whether I.A. Ill for amendment of the plaint should be allowed?

4. To what order?”

Point No,1 has been answered against the plaintiffs by holding that in view of Section 16 of the Act the plaintiffs cannot be said to have acquired absolute prescriptive easementary right because the first defendant was in possession of the land as a tenant since 1960 when he purchased the said land becoming owner thereby. Therefore according to the Court below, for computing the prescriptive period, the period during which the said defendant was having an interest only as a tenant has to be excluded and on such exclusion the period remains to be only 16 years. So far as the second question is concerned it has been held in one of the Decisions of this Court in the case of D. Ramanatha Gupta Vs. S. Razaack, that the right of easement by prescription cannot become absolute unless the right has been contested in a suit, and the suit for mere injunction is not maintainable if the injunction sought is based on a claim of easementary right unless that right is established in a suit. Paragraph 11 of the said Judgment reads as under: –

“11, It is, therefore, necessary that in a suit for injunction based on a prescriptive easement right, the plaintiff should seek for a declaration from the Court that he has so acquired the prescriptive right of easement. In the present suit, however, the plaintiff has not sought for declaration that he has acquired prescriptive right of easement with regard to the inflow of air and light through the windows and ventilator. Without more, therefore, the suit is liable to be dismissed. The Courts below have obviously missed this legal aspect.”

Coming to the question of permitting the amendment the same has been rejected interalia on the ground that the owners of Sy.Nos. through which the sketch of the way marked as ‘A.B.D.D.E.F.G.H.I’ passes have not been impleaded as parties in the present suit and in the absence of those persons, the right of easement as claimed over their lands cannot be adjudicated. Moreover, so far as those persons are concerned the right of easement, if any existed, has already been lost since the same was not sought to be established within two years of the cessation of the claimed prescriptive easementary right.

4. Sri Visweswara, appearing for the plaintiffs submitted that in the present case though the relief pertaining to prescriptive easementary right has not been claimed in specific terms none the less all the necessary facts for granting of such a relief had been pleaded and proved during trial. His further submission is that the parties had gone to the trial with the clear knowledge that the question of prescriptive easementary right is one of the main issues arising between the parties and they have lead the required evidence in this regard. According to him, therefore the lower Appellate Court has illegally refused to allow the prayer for amendment which, otherwise keeping in view the interest of Justice, should have been allowed. In support of his submission he has relied on the Decisions of the Supreme Court in the case Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, . and in the case of L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , and also in the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, , On the other hand the learned Counsel appearing for the contesting defendants has relied on the Decision of this Court in the case of Karnataka Electricity Board Vs. Oriental Timber Industries, to support the finding of the lower Appellate Court on the point of disallowance of the amendment.

5. In the case of L.J.LEACH & CO (supra), it has been held as follows;-

“It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.”

Again in the case of PIRGONDA (supra) it has been held as follows:-

“All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the otherside, or can it not?”

In the case of JAI JAI RAM MANOHAR LAL (supra) it has been held as follows:-

“Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala-fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.”

A conspectus of the Decision of the Supreme Court as noticed above clearly establishes that the amendment to the pleading should be allowed unless it is found that exercise of such a discretion will lead to prejudice to the other side thereby defeating the right which has already accrued to a party by lapse of time.

6. In the present case the amendment sought by the plaintiff in the relief portion was to the following effect:

“A-1) It be declared that the plaintiffs and their family members have acquired an Easement right by prescription to take their carts and catties to their lands R.S.No. 376, 376A and 375 and to return from them by the passage marked by letters ABCDEFGHI in the Hand-sketch annexed to the plaint.”

As I have already stated, the said passage marked as ‘A.B.C.D.E.F.G.H.I.’ passes through 27 Survey numbers belonging to various persons out of whom only two, namely the defendants have been impleaded in the present suit. As noticed by the lower Appellate Court, it has come in the evidence that some of owners of the lands through which a part of the way denoted in the sketch as ‘A.B.E.D.E.F. have dug trenches on the land to divert water or have ploughed the lands and have sown the seeds in the stretch of the land claimed as the path. Therefore, keeping in view the law laid down by the Supreme Court the amendment as sought cannot be allowed in the absence of necessary parties being the owners of other survey numbers over which the easementary right of way was sought to be claimed through amendment. Further on the date of seeking amendment the plaintiffs had already lost their prescriptive right of easement over the stretch ABCDEF in view of the fifth paragraph of Section 15 of the Act.

7. The submission of Mr. Visweswara that the amendment could have been allowed by restricting the relief to the part of the way covered between the points G and H passing through the lands of the defendants only cannot also be accepted, since, apart from the fact that no prayer to this effect was made before the first appellate Court, it would have led to a futile exercise. In the present case, the plaintiffs have claimed the prescriptive easementary right of way over the entire land denoted by points ‘ABCDEFGHI’ being a way leading from public road to the house of the plaintiffs. As discussed above, the plaintiffs have already lost their prescriptive right over the stretch ABCDEF. Therefore, even if they are found to have substantiated the prescriptive right over the stretch ‘GHI’, still they are not entitled to any relief in view of Section 42 of the Act which reads as under –

“Section 42. Extinction of useless easements.

An easement is extinguished when it becomes incapable of being at any time and any circumstances beneficial to the dominant owner.”

The above provision has been incorporated in the Act with the underlying principle that useless restrictions on the rights of properties needs to be avoided. Accordingly it has been statutorily declared that an easement which under no circumstances can be advantageous to the dominant heritage shall cease to exist. It has been Judicially recognised that as a right of easement exists only for the beneficial enjoyment of the dominant heritage, the easement is extinguished, u/s 42 of the Act, when it becomes incapable of being beneficial to the dominant owner at any time and under any circumstances. Abiding by the said principle, in the present case, even if a declaration of right of passage is made in respect of the stretch falling between the points G, H & I, that cannot lead to any beneficial enjoyment of the dominant heritage, being the houses of the plaintiffs, because by grant of any such relief, the plaintiffs cannot exercise their right of way through the lands of other owners so as to reach the public road. Therefore, the easementary right of the plaintiffs, if any existed over the lands of the defendants, has extinguished in view of Section 42 of the Act as having become useless.

8. For the aforesaid reasons, in my opinion, the Court below has rightly set aside the judgment and decree of the trial Court as against defendants 2 and 3. The same had already abated against defendant No. 1. The Appeal is accordingly dismissed but without costs.

(1995) ILR(Karnataka) 1413 : (1995) 6 KantLJ 107