The distinction between easement by necessity and easement by grant

Section 13 of the Easements Act 1882, permits easement by necessity and that cannot be claimed if an alternative passage is available, though it may be bit inconvenient or a longer for his ingress and egrees.

UTTARAKHAND HIGH COURT

SINGLE BENCH

( Before : Rajesh Tandon, J )

SHAMBHOO LAL SAH — Appellant

Vs.

GAURI SHANKAR SAH — Respondent

Second Appeal No. 86 of 2002

Decided on : 23-04-2007

Easements Act, 1882 – Section 13, Section 13(f)
Indian Easement Act, 1882 – Section 13 – Easement of necessity

Cases Referred

Hero Vinoth (minor) Vs. Seshammal, AIR 2006 SC 2234 : (2006) 102 CLT 393 : (2006) 4 CTC 79 : (2006) 5 JT 436 : (2006) 5 SCALE 477 : (2006) 5 SCC 545 : (2006) 2 SCR 79 Supp : (2006) AIRSCW 2833 : (2006) 4 Supreme 131
Rama Vs. Megha and Others, AIR 2002 Raj 309 : (2002) 3 WLC 466 : (2002) 4 WLN 24
Rameshchandra Bhikhabhai Patel Vs. Maneklal Maganlal Patel and Another, AIR 1978 Guj 62 : (1978) GLR 329

Counsel for Appearing Parties

R.P. Nautiyal, for the Appellant; Bindesh Kumar Gupta and Sanjeev Sah, for the Respondent

JUDGMENT

1. Heard Sri R.P. Nautiyal, counsel for the Appellant and Sri Bindesh Kumar Gupta and Sri Sanjeev Sah counsel for the Respondent.

2. Present appeal has been preferred against the judgment and decree dated 4-7-2002 passed by the District Judge, Nainital in Civil Appeal No. 40 of 2001.

3. Briefly stated that a suit No. 59 of 1996 was instituted by the Plaintiff/ Respondent before the Civil Judge (JD), Nainital for perpetual injunction, with the allegations that the Plaintiff and the Defendant are real brothers. There are two other brothers Bharat Lal Sah and Bashkar Lal Sah. All the four brothers had a joint ancestral property including the property situated at Ayarpatta, Mallital, Nainital known as Priory Lodge, Priory Cottage and Fern Cottage. On 1-7-1986 a family partition took place between all the four brothers and according to the family settlement dated 1-7-1986, the following property came in the share of the Plaintiff/Respondent:

Ram Niwas Champa Naula, Almora, house and land plus Western half portion of priori; cottage, Nainital.

4. In the same partition following property came in the share of the defend-ant/Appellant.

Half East portion of Priori; Cottage and half portion of Priory Lodge with land and outhouses and the approach road which is from East to West is situated below Fern Cottage, except Tennis Court.

5. The Plaintiff has annexed a sight map along with the plaint. The property of the Plaintiff has been shown by letters ABCD while the property of the Defendant / Appellant has been shown marked by letters EFGH. The Plaintiff/Appellant lives in half portion of the Priory Lodge, shown by IJKL. According to the Plaintiff the only approach to reach in the Plaintiff’s share is being used by the Plaintiff and his tenant for more than 46 years, which has been shown by brown colour in the plaint map with letters MNOP.

6. According to the plaint allegations the Defendant / Appellant has started constructing a boundary wall to separate his portion in the Priory Cottage and he intents to block the approach to the Western portion of the Priory Cottage which is in the share of the Plaintiff.

7. The Defendant / Appellant contested the suit and filed his written statement. In his written statement he has admitted that the Plaintiff and Defendant are real brothers. It is also admitted that the Eastern portion of the Priory Cottage came in the share of the Defendant, while Western half portion of the said cottage went in the share of the Plaintiff. However, the factum as to the approach road of the Plaintiff has been specifically denied by the Defendant.

8. On the pleadings of the parties the trial court has framed the following issues:

1) Whether the suit is under valued and court fee paid is insufficient ?

2) Whether disputed Rasta-land shown by letters MNOP in the plaint map is the approach road for both the parties ?

3) Whether Defendant intends to close the disputed approach road ?

4) To what relief, if any, is the Plaintiff entitled ?

9. The trial Court has decided issue No. 1 as a preliminary issue on 20-11-1999 in negative. Issue No. 2 was disposed of with the findings that the disputed approach road is not the only way for going in the Western portion of the Priory Cottage, which is in possession of the Plaintiff and the Plaintiff has alternative way to approach his house. Issue No. 3 was decided in affirmative. With the aforesaid findings the suit of the Plaintiff was dismissed.

10. Feeling aggrieved the Plaintiff has preferred an appeal No. 40 of 2001 before the District Judge, Nainital. The appeal was heard and decided by the lower appellate Court. It has been held by the lower appellate court that u/s 13 of the Easement Act, after partition, the approach or the easement rights which were available before the partition would not be affected. The lower appellate court has also concluded that earlier road or rasta which were not actually easements rights become the easementary rights on partition and it is not necessary to show the absolute necessity for enjoying the partitioned portion.

11. The lower appellate court has allowed the appeal vide order dated 4-7-2002 and decreed the suit of the Plaintiff for permanent prohibitory injunction restraining the Defendant from obstructing the approach road over the disputed rasta land. Feeling aggrieved the present second appeal has been preferred by the Defendant/Appellant.

12. The Appellant has framed the following substantial questions of law:

(1) Whether in the facts and circumstances of the case, Section 13(f) of the Easements Act was applicable to the present case ?

(2) Whether in the facts and circumstances of the present case, a case of an easement of necessity could be claimed by the Plaintiff Respondent ?

13. So far as the first substantial question of law is concerned much reliance has been placed by the lower appellate Court on Section 13(f) of the Easements Act. Section 13(e) and (f) reads as under:

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 a different intention is expressed or necessarily implied, be entitled to such easement.

14. It is an admitted case of the parties that Plaintiff and Defendant are the real brothers. They are five brothers in all. It is also admitted to the parties that partition had taken place between the brothers on 1-7-1986. The photocopy of the partition deed has been filed by the Plaintiff, which is paper No. 10-C on record. The Plaintiff has also filed copy of the property in dispute which is paper No. 11-C on record.

15. According to the family settlement dated 1-7-1986 and on the basis of mutation dated 24-4-1987 the share of the Plaintiff in the above property is described below:

Ram Niwas Champa Naula, Almora House with land plus Western half portion of Priori; Cottage, Nainital. The portion of the Plaintiff in the map which was submitted by the Plaintiff and his brothers in the Nagar Palika at the time of mutation was shown by blue colour lines.

16. The portion which came in the share of the Plaintiff has been shown by blue colour lines in the site map and marked by ABCDA. According to the Plaintiff the family uses the path way shown and marked as MNOPM in the map attached with the plaint. According to the partition map this way is shown as path to whole Priory Cottage.

17. Copy of the partition deed is on record, which is paper No. 11-C. The extract of the Schedule of property allocated to the share of Plaintiff Gaurishankar Sah and Defendant Shambhu Lal Sah reads as under:

3. Lt. Colonel S.L Sah Half of Priory Lodge land with it’s out houses and approach road and land below Fern Cottage East to West excluding tennis court of Priory Lodge plus Eastern half portion of priory cottage.

4. Shri Gauri Shankar Sah Ram Niwas Champa Naula, Almora house with land plus Western half portion of Priory Cottage, Nainital.

18. The above extract of partition deed clearly shows that half of the portion of Priory Cottage with approach road came in the share of the Appellant/ Defendant Shambhu Lal Sah. After partition of Priory Cottage both half shares of the Plaintiff and Defendant were divided by a partition wall. The site plan attached with the partition deed and admitted to the parties shows that there are public roads both Eastern and Western side of the Priory Cottage. In the Western side approach road namely Dal House Road goes to Fern Cottage and Priory Cottage has been shown. In the Northern and Eastern side there are public road also. This it is clear that prior to partition of the Priory Cottage there were approach roads from almost all the directions but after division of the property each share holder has become independent user and occupant of his share. If each portion of the property has its independent approach from the public road, one cannot claim his right of way through the share of another.

19. If the Plaintiff was using way through the property of Defendant for some time after partition, it creates No. right of easement in his favour for ever, when there is another approach road available to him for access to his property.

20. The Plaintiff is claiming rasta through the property of the Defendant for ingress and egress to his house on the basis of his right to easement as the same was being used before partition but at the same time he is prohibiting to use rasta through his share for coming to the share of the Defendant. In his cross-examination Plaintiff P.W.1 has stated as under:

21. The above statement of the Plaintiff unequivocally shows that he has alternative way to approach his property to which he says his private way. Thus apart from his usual way to approach his property he wants to use way through the property of the Defendant for his convenience. However, he is not permitting anybody to use the way through his property.

22. Section 13 of the Easements Act 1882, permits easement by necessity and that cannot be claimed if an alternative passage is available, though it may be bit inconvenient or a longer for his ingress and egrees.

23. A Division Bench of Gujrat High Court in the case Rameshchandra Bhikhabhai Patel Vs. Maneklal Maganlal Patel and Another, , has observed that the easement of necessity does not survive after the alternative out let is available to the claimant of that right.

24. Similarly in Thottathil Thamasikkum Cherootty alias Balan v. Puliyaratharayil Velayudhan Nari, AIR 1998 Ker 164 the Kerala High Court considered the same aspect and observed as under:

Since there is an alternative pathway, the case of easement by necessity goes. The trial Court held that the Plaintiff has No. easement by prescription.

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As the Plaintiff has No. right of easement of necessity and also easement by prescription, he cannot claim that he is entitled to walk through the particular portion of the Defendant’s property so as to cause hardship to the Defendant.

25. Rajasthan High Court in a similar case after placing reliance on various judgments of other High Court in the case Rama Vs. Megha and Others, , has observed as under:

If the alternative available passage is usable and remains so throughout the year, the question of claiming easementary right may not arise.

26. Thus in view of above, the Plaintiff cannot claim right of way through the property of the Defendant Appellant as easementary right as alternative path way is available to the Plaintiff for ingress and egress to his property. Thus the Plaintiff has No. right of easement of necessity.

27. Moreover, there is nothing in the family partition deed paper No. 10-C filed by the Plaintiff himself, regarding the alleged right of way to ingress and egress to the property of the Plaintiff through the property came in the share of the Defendant/Appellant. Thus the Plaintiff cannot claim right of easement by grant.

28. Apex Court in the case Hero Vinoth (minor) Vs. Seshammal, has clearly distinguished easement by necessity and easement by grant as under:

An easement by grant does not get extinguished u/s 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.

29. The Plaintiff/Respondent has neither pleaded that rasta was granted to him through the share of the Defendant in the Priory Cottage for ingress and egress to his share in the said cottage at the time of family partition nor he pleaded right of way by easement of necessity. Thus the trial Court has rightly dismissed the suit of the Plaintiff but the lower appellate court was not justified by interpreting Section 13 of the Easements Act, and holding that the rasta was given to the Plaintiff through the share of the property of Defendant. Thus the appeal deserves to be allowed.

30. Accordingly, the appeal is allowed. The judgment and decree dated 4-7-2002 passed by the lower appellate court is set aside and the judgment and decree dated 29-6-2001 is affirmed.

31. No. order as to costs.

(2007) 4 UC 491