Bombay High Court
Namdeo Gyanoba Jondhale And Another vs Chudabai Vithalrao Jondhale And Others on 4 January, 2024
2024:BHC-AUG:68
sa-440-1993 judg.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.440 OF 1993
1. Namdeo s/o Gyanoba Jondhale (Dismissed as abated)
Age 50 years, Occu. Labourer,
R/o. Nanded, Itwara,
Nanded.
2. Deepak s/o Namdeorao Jondhale,
Age 28 years, Occu. Service,
R/o. Nanded, Itwara,
Nanded ...Appellants
(Orig. Defendants)
Versus
1. Chudabai w/o Vithalrao Jondhale,
Age 55 years, Occu. Household,
R/o. Itwara, Nanded.
2. Kiran s/o Vithalrao Jondhale,
Age 30 years, Occu. Labourer,
R/o. As above.
3. Harish s/o Vithalrao Jondhale,
Age 25 years, Occu. Labourer,
R/o. As above. ...Respondents
(Orig. Plaintiffs)
Mr. M.M. Patil Beedkar, Advocate for Appellant No.2.
Mr. S.S. Gangakhedkar, Advocate for the Respondent No.1.
Mr. S.L. Jondhale & Mr. R.S. Jondhale, Advocate for Respondent
Nos.2 & 3 (Absent).
...
CORAM : S.G. MEHARE, J.
RESERVED ON : 25.10.2023
PRONOUNCED ON : 04.01.2024
sa-440-1993 judg.odt
(2)
JUDGMENT :
-
1. The appellants/defendants have impugned the judgment
and decree of the learned IIIrd Additional District Judge, Nanded,
passed in Regular Civil Appeal No.188 of 1991 dated 10.08.1993.
2. The parties will be referred to as their original status. The
appellants will be referred to as the 'defendants', and respondents will
be referred to as the 'plaintiffs'.
3. The brief facts were that the plaintiff's husband and
father and defendant No. 1 were the real brothers. They had
partitioned their properties with a third brother. The plaintiffs have
received the extreme northern share, and the defendants have the
southern portion of their ancestral property in partition. They did not
deny the partition and three-foot lane between their houses. The
plaintiffs had a case that they were enjoying their respective shares
after the partition. However, towards the west of their houses, there is
a way measuring 8 ft x 15 ft to reach the municipal road and then to
the main road. It will be referred to as a disputed way. However, in
December 1998, the defendants started constructing their house.
Their construction was in violation of the Town Planning Act and
Rules. They tried to encroach upon the disputed way and closed their
use of it. The Municipal Council visited the spot of the incident and
directed them to stop the illegal construction. The plaintiffs have
come up with a case that they have a right of easement of necessity to
sa-440-1993 judg.odt
use the disputed way shown in the map and have sought perpetual
injunction against the defendants from constructing any wall or
blocking the disputed way.
4. The defendants contested the suit. They have barely
denied the plaint and literally have no specific case.
5. The Court of First Instance had dismissed the suit;
however, the First Appellate Court allowed the suit. Against the said
judgment, the defendants are before this Court. This Court admitted
the appeal on 10.11.1994 with the following order :
"Heard.
Admit. Ground Nos. 3 to 7 raise substantial questions of law."
6. Ground Nos. 3 to 7 have been reproduced as substantial
questions of law as follows :
1. That the learned appellate Court has not considered
that the plaintiff's case does not prove and satisfy the existence
and basic ingredient as required by Sec.4 of the Indian
Easement Act viz. necessity of use the disputed passage for the
beneficial enjoyment of that property and dominant heritage
over the defendant's property.
2. That the appellate Court has not considered the
important aspect that the plaintiffs have admitted that the
existence of enterence of northern side to their house as well
as the existence of public road to the Northern side of their
house.
3. That the appellate Court has not considered the
evidence brought on record by the parties properly and made
sa-440-1993 judg.odt
an error in deciding the suit and the plaintiffs, by reversing the
decree passed by the trial court.
4. That the appellate Court has not considered that
plaintiff no.2 and their witness P.W. 3 in the evidence, admitted
the fact that the disputed passage i.e. Municipal House No.7-3-
14 C.T.S. No.1389, is purchased by one Mr. Anwar and the
same passage is now in possession of Mr. Anwar and therefore
the plaintiffs have no right or cause to file this suit.
5. That the Appellate Court has not considered that the
plaintiffs have failed to prove that they are using the disputed
property as right of way continuously for twenty years U/sec.
15 of the easement Act for the use and beneficial enjoyment
without any interruption."
7. Heard the respective counsels at length.
8. Learned counsel for the appellant would submit that the
candid admission of the plaintiffs that the space, which was claimed
to be a road to approach the municipal road, is owned by one Anwar.
Therefore, the plaintiffs cannot claim the easementary right against
the defendants. There was no iota of discussion in the Appellate
Court's judgment that one Anwar was the owner of the same strip of
land, which is claimed to be the way. Anwar was not the party to the
suit. Hence, the suit was bad for the nonjoinder of the necessary party.
The First Appellate Court erroneously relied upon the Xerox copy of
the map. For seeking relief under Section 4 of the Indian Easement
Act, there shall be ownership of someone. He has referred to Sections
4 and 15 of the Easement Act. He would submit that there was no
sa-440-1993 judg.odt
evidence that the plaintiffs had been uninterruptedly using the
disputed way for the last 20 years. Besides that, the plaintiffs had an
alternate way from the northern side. Therefore, it was not an
absolute necessity. Since there was no absolute necessity, there can be
no easement of necessity. To bolster his arguments, he relied on the
case of Shree Swayam Prakash Ashramam Vs. G. Anandavally Amma
and others, (2010) 2 SCC 689. He would submit that there was
another way available. Hence, plaintiffs cannot claim easement of
necessity. He also relied on the case of The Roman Catholic Mission
Vs. The State of Madras and another, AIR 1966 SC 1457. He prayed to
allow the appeal.
9. Per contra, learned counsel for the plaintiffs would
submit that the fact of closing down the disputed way has been
proved as the Municipal Corporation took action against the
defendants. The First Appellate Court has correctly appreciated the
fact and concluded that the right to use the disputed way existed.
However, the stray admission that one Anwar had purchased the land
in front of the western side, which was irrelevant to the facts in
question, has been incorrectly appreciated by the Court of first
instance. The Court of First Instance incorrectly considered the
admission regarding the alternate way from the northern side of the
house. Since the disputed way to approach the main road was
attempted to be blocked, the door was opened from the northern side
sa-440-1993 judg.odt
as the time gap arrangement. Barely having or creating an alternate
way does not cease the right which was in existence. He has referred
to Section 3(e) and 15 of the Easement Act. He relied on the case of
Ashareddy s/o Narayanreddy Vs. Lingareddy s/o Lingappa and
others, 2001 (2) Mh.L.J. 143 and Palaniswami Naicker Vs.
Chinnaswami Naicker, MANU/TN/0506/1967.
10. Mostly, the facts were not disputed. The defendants did
not specifically deny the existence of the disputed way. The
defendants have simply denied the allegations levelled against them
in the written statement. The defendants had no specific case that one
Anwar owned the disputed way. Considering the arguments of both
sides, first of all, it is to be determined whether the right claimed by
the plaintiffs was the easement. More particularly, where neither the
plaintiffs nor the defendants were the owners of the disputed way, it
was a way in front of their houses. A fair reading of the plaint
discloses that the plaintiffs had claimed the injunction against the
defendants from closing the disputed way as it existed and was used.
When the defendants started encroaching upon the disputed way by
raising a new construction, the plaintiffs were seeking protection of
the way that was already in existence and in their use to reach the
municipal road and then the main road. As per the arguments of the
learned counsel for the appellants, the basic ingredients as required in
sa-440-1993 judg.odt
Section 4 of the Indian Easement Act, were not in existence. Section 4
of the Indian Easement Act 1882 defines the easement as follows :
"An easement is a right which the owner or occupier of certain
land possesses, as such, for the beneficial enjoyment of that
land, to do and continue to do something, or to prevent and
continue to prevent something being done, in or upon, or in
respect of, certain other land not his own."
11. It is an admitted fact that the disputed way was not
created after the partition of their ancestral property. It was in
existence even before the partition. A fair reading of the plaint reveals
that though the plaintiff had brought the case of easement of
necessity, his case was primarily based upon the existence of the
disputed way not owned by the defendants. Since both parties
admitted that no one of them was the owner of the disputed way, and
in the absence of the claim by any third party, it is presumed that it is
a public road under the control of the local government. For creating
a right, there must be a dominant and servient tenement. It is
essential for the existence of an easement right that the burden of the
enjoyment of the right must fall upon a tenement that is owned by a
person different from the one who owns the dominant heritage.
Unless there are two different owners, defined as a dominant owner
and servient owner by Sec.4 of the Act, no right in the nature of an
easement can flow. As per the definition of 'easement' in Section 4 of
the Indian Easement Act, for an easement right, there must be two
sa-440-1993 judg.odt
tenements, a dominant tenement and a servient tenement, and the
title of these two tenements must inhere in different persons. The
facts of the present case were that the defendants were in their house,
which was towards the south of the plaintiff's house. Though the
plaintiffs claimed that they have the easement right, it appears from
the pleading that they have a case of the existence of the disputed
way, which was neither owned by them nor the defendants. Hence, it
cannot be said that by merely claiming the easement right, the suit of
the plaintiffs is liable to be dismissed. Prima facie, it appears that the
right to enjoy the disputed way was tried to be obstructed. Sufficient
material was before the Appellate Court. Barely pleading or claiming
the easement right may not decide the fate of the suit. There appears
substance in the submission of the learned counsel for the plaintiffs
that the admission of ownership of one land by one Anwar has been
misread. The defendants never denied the existence of the disputed
way. The Municipal Corporation has also taken action against them.
Therefore, though the plaintiffs have claimed the easement of
necessity and failed to prove the same, it cannot be said they are not
entitled to the relief claimed.
12. Relying on the case of Sree Swayam Prakash Ashramam
(cited supra), learned counsel for the appellant has vehemently
argued that the admission of the plaintiffs of having an alternate way
from the northern side is not an absolute necessity. Since another way
sa-440-1993 judg.odt
exists, there can be no easement of necessity. This Court has already
held that this was not the case of easement. It was a case of the
existence of the disputed way not owned by either side and in use of
the plaintiffs and tried to be obstructed by the defendants by illegal
construction. Hence, the ratio laid down in the case of Sree Swayam
Prakash Ashramam (cited supra) would not assist the defendants.
Since the existence of the disputed way was admitted, no other
evidence was required to prove its existence. The map the Appellate
Court read was a plaint map, which the defendants never denied.
Since the right to claim the easement was not the true case of the
plaintiffs, the requisite ingredients of Section 15 of the Indian
Easement Act were correctly not considered by the First Appellate
Court.
13. On the above discussion of law and fact, the substantial
questions of law nos. 1 and 5 have been answered that since the
plaintiffs have no case of easement, there is no necessity to prove the
ingredients of Sections 4 and 15 of the Indian Easement Act. Question
of law no.2 is answered that since it was not the case of easement of
necessity, the alternate way to use the property would not bar the
plaintiffs from protecting the use of the disputed way. Questions of
law nos.3 and 4 are answered that the First Appellate Court did not
mistake in appreciating the evidence and not believing the admission
that one Anwar was the owner of the disputed way.
sa-440-1993 judg.odt
14. For the above reasons, the Court concludes that there is
no substance in the appeal. Hence, the following order;
ORDER
(I) Second Appeal stands dismissed.
(II) No order as to costs.
(III) Record and proceedings be returned to the learned Court of
first instance.
(S.G. MEHARE, J.)
Mujaheed//
Signed by: Syed Mujaheed Naseer
Designation: PA To Honourable Judge
Date: 04/01/2024 17:34:35
