Hussaina Begum vs Smt. Santosh Saraf
2021 Latest Caselaw 969 Chatt

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                                                                       NAFR
               HIGH COURT OF CHHATTISGARH, BILASPUR
                         W.P.(227) No. 909 of 2019
                       Order reserved on 05.07.2021
                       Order delivered on 08.07.2021

      Hussaina Begum W/o Abdul Gafur Aged About 60 Years R/o Jawahar Bada,
      Sarafa Gali, Juni Line Bilaspur, District Bilaspur, Chhattisgarh.
                                                               ---- Petitioner
                                  Versus
      Smt. Santosh Saraf W/o Chhedilal Saraf Aged About 53 Years R/o Jawahar
      Bada, Sarafa Gali, Juni Line Bilaspur, District Bilaspur, Chhattisgarh.
                                                            ---- Respondent

For the Petitioner : Shri Badruddin Khan, Advocate. For the Respondent : Shri Shobhit Koshta, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV ORDER

Heard.

1. This petition has been brought being aggrieved by the order dated

2.8.2019 passed by the Learned Second Additional District Judge, Bilaspur

in M.C.A. No. 22 of 2019, whereby the learned Court dismissed the appeal

upholding the order of rejection passed by the Civil Judge, Class-II on an

application under Order 39 Rule 1 and 2 of the CPC filed by the petitioner in

Civil Suit No. 207-A of 2018.

2. It is submitted by counsel for the petitioner, that the claim of the

petitioner is based on the right of easement of necessity. The petitioner has

filed the civil suit and pleaded that she was born in the house situated in

Jawahar Bada and residing continuously since then. The husband of the

petitioner had entered into an agreement with Chironji Lal for the purpose of

purchasing the house, in which the petitioner and her husband were residing

in the year 1994, however, that agreement was not performed. The

respondent has purchased some area of Jawahar Bada in the year 2010.

On 21.6.2017, the respondent has raised construction and fixed a gate on

the public path which is situated in Nazul land, Street No.27, Plot No. 156

and the measuring area is 260 sq. ft. Because of the obstruction in the way

of the petitioner; a complaint was given to the police on 22.6.2017. The

obstruction on the path of the petitioner is still continuing because of which,

the petitioner and the other tenants of Jawahar Bada are getting affected. It

is pleaded that the petitioner had been using the disputed path from her

childhood, therefore, the obstruction by construction is illegal and

unauthorized and on that basis, relief of easementary right of way has to be

restored.

3. The application under Order 39 Rule 1 & 2 of the CPC filed by the

petitioner was firstly dismissed by the trial Court and then the appeal filed by

the petitioner has also been dismissed by the Appellate Court in the

impugned order. It is further submitted that the petitioner has the right of

easement available on the basis of the easementary right and also on the

basis of the necessity. Apart from that, it is also submitted that the petitioner

has also acquired title over the disputed path on the basis of her continuous

and adverse possession.

Reliance has been placed on the judgment of Rajasthan High Court in

the case of Birma Ram and Others vs. Teja Ram & Others in Civil Misc.

Appeal No. 1251 of 2010 dated 1.12.2010, on the judgment of Karnataka

High Court in the case of A.S. Umeshappa and Ors. vs. C. Byrappa and

Ors. in W.P. 16582 of 2012 dated 31.07.2012 and on the judgment of

Supreme Court in the case of Sree Swayam Prakash Ashramam and Anr.

vs. G. Anandavally Amma and Ors. in Civil Appeal No. 7 of 2010 dated

05.01.2010. On the basis of these judgments, the petition be allowed and

the relief be granted to the petitioner.

4. Learned counsel for the respondent opposes the submissions of the

petitioner's counsel and submits that there is no proof in support of the

pleading of the petitioner, that the path which was used by her was a public

path. It is a clear case of landlord and tenant. The petitioner has

suppressed the facts present that a suit for eviction was brought against the

petitioner by her landlord and that Civil Suit No.33A of 2005 has been

decreed by the judgment dated 25.1.2006 in favour of the plaintiff. The

appeal preferred was dismissed then the second appeal before the High

Court and the SLP before the Supreme Court, also have been dismissed.

The petitioner was evicted from the suit property in execution, but the

petitioner has forcefully repossessed the house of the landlord. In this

connection, a criminal case was registered against the petitioner under

Sections 341 and 448 of the IPC, in which she was convicted by the trial

Court; her conviction was confirmed by the Sessions Court in appeal and

thereafter, the criminal revision is pending before this High Court.

5. It is submitted by counsel for the respondent, that even if it is

considered that the petitioner is residing in a house in Jawahar Bada and

there is a requirement for her access to that house, in that case there is an

alternate path present. The right to easement is neither acquired nor there is

any easement of necessity present. It is also submitted that the original

owner of the property was Falitram, who sold the same to one Suman Gupta

and the respondent has purchased the same by a registered sale deed on

5.10.2012, therefore, he has a valid title over the suit property, whereas, the

petitioner is a trespasser, hence, the trespasser does not have any right of

easement. Learned trial Court and the Appellate Court, both have rightly

held that there is no prima facie case in favour of the petitioner in dismissing

the application and the appeal. Hence, the petition also is without any

substance which may be dismissed.

Reliance has been placed on the judgment of Supreme Court in the

case of Justiniano Antao and Others vs. Smt. Bernadette B. Pereira,

reported in (2005) 1 SCC 471, in which it has been held that in case where

there is any alternative, then there cannot be any easement of necessity

present.

6. In reply, it is submitted by counsel for the petitioner that the petitioner

does not have any alternative path available, therefore, she is in need of

easementary right.

7. Considered on the submissions. Firstly, it is clear that the petitioner

has no title over the accommodation in which she is residing at present.

Therefore, the first question for consideration would be whether the tenant

has entitlement for right of easement. Section 4 of the Indian Easements

Act, 1882 provides that the owner or occupier of certain land may have

entitlement, which can be taken into consideration as support to the claim of

the petitioner.

8. On perusal of the impugned order, it is found observed, that the

petitioner has access to an alternative path which may be used by her. Apart

from that, the pleadings in the plaint itself disclose that the construction has

been raised and the gate has been fixed, hence, it clearly shows that the act

of the respondent has simply obstructed the access of the petitioner over the

suit property. The easement right that is claimed, does not appear to be in

continuation. The interim relief which can be granted under Order 39 Rule 1

& 2 of the CPC can be only for maintaining and preserving the status-quo

the party had enjoyed on the date of filing the suit or on the date the

application is being decided. From the statement and the submissions of the

petitioner herself, it is clear that on the date of filing and on the date the

application was being decided, the petitioner was not enjoying the

easementary right as claimed.

9. Further, on perusal of the copy of the plaint filed alongwith the petition

and also looking to the history of litigation between the petitioner and her

landlord and that the entitlement of her possession in the tenanted house

has been put to question, I am of this view that the Courts below have not

committed any error in passing the orders of rejection, therefore, this petition

appears to be devoid of substance, which is dismissed.

Sd/-

(Rajendra Chandra Singh Samant) Judge Nimmi