7/28/2019 Balkrishna Das vs Shyam Sunder Mandal and Ors. on 8
April, 1937
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Patna High Court
Patna High Court
Balkrishna Das vs Shyam Sunder Mandal And Ors. on 8 April,
1937
Equivalent citations: 172 Ind Cas 516
Author: Rowland
Bench: Rowland
JUDGMENT
Rowland, J.
1. This appeal arises out of a suit brought to declare a right
of easement in favour of the plaintiffs as owners of
a house and bari in village Jaganathpur. The right claimed is a
right of way as an easement over an adjacent
plot on the east and north bearing No. 121 and shown in the
Record of Rights as a rasta or pathway, the
property of the defendant. The house and bari of the plaintiffs
are accessible from a road on the west side as
well as from the disputed land on the east. The Munsif dismissed
the suit following the entries in the Record
of Rights, that is to say in the provincial record prepared in
1898 the plot in question was shown as a pathway
of the defendant, no right of way over it being entered in
favour of any person. In the revision record of 1911
it was similarly entered. In the current record of 1930 it was
entered as a pathway in the property of the
defendant, but in the remarks column a note was made that five
named persons had a right of way over it.These are neighbours. But
no such right was noted in favour of the plaintiffs, hence his
suit. It is alleged that
after the Record of Rights was prepared, the defendant closed a
passage or exit leading from the plaintiff's bari
to the disputed rasta.
2. The Subordinate Judge who heard the appeal of the plaintiffs
has allowed it, finding that the plaintiffs were
entitled to the easement claimed as an easement of necessity. He
considers that this easement is necessary to
the plaintiffs for two purposes, one being for access because
failing use of this pathway, the plaintiffs would
have to go round another and a longer way to get to another road
on the east; secondly, that it was necessary
for the plaintiffs to have the use of this path because the
fence and ridge which he erected on the north and
east of his bari require to be repaired from time to time and
this repair needs to be a from outside and from
inside, that is to say, it cannot be effectively done without
going on the disputed path. The third ground givenby the learned
Subordinate Judge for decreeing the suit is that the plaintiffs
have been using this path since
1887. The reasoning of the Subordinate Judge on the first two
points, I regret to say betrays ignorance of what
is an easement of necessity. To establish an easement of
necessity it is not sufficient to show that if the
easement is denied, the party claiming it will be put to
inconvenience. The Easements Act (V of 1882), though
not in force in this province, furnishes a guide to what is
meant by an easement of necessity in Section 13. It is
clear in the first place that an easement of necessity arises
when immovable property is transferred by one
person to another. It arises in favour of the transferee of a
property if the easement is necessary for enjoying
the subject of the transfer. If this is what is an easemsnt of
necessity means, (and there is no doubt that the
Basements Act was intended to express or consolidate rather than
create new principles of law) the necessity
set up must have been a necessity existing at the time of the
transfer of the property. Therefore, when the
Subordinate Judge argues that the repair of the plaintiff's
fence was a necessity and that the plaintiffs were
entitled to an easement of necessity for the purpose of
repairing this fence, his view is entirely erroneous. It
was at the plaintiffs' choice to erect a fence in any part of
their property in which they chose to erect it and
they could be quite well have placed their fence a few feet back
from the extreme boundary of their property
in order that they may be able to get to the other side of the
fence without stepping beyond their own land.
Therefore, the fact that the plaintiffs require to go outside
their fence in order to repair it cannot make the
easement claimed as easement of necessity.
3. Then as regards the requirement; of the plaintiffs to use the
path, the Subordinate Judge has found that the
path was in existence at the time of the transfer of the
property to the plaintiff's predecessor. But it has not
been found that this path was then or has ever been the only way
by which the plaintiffs could obtain access to
their property. As pointed out in Daroga Lal v. Devi Lal 48 Ind.
Cas. 670 48 Ind. Cas. 670 : AIR 1918 Pat.
Balkrishna Das vs Shyam Sunder Mandal And Ors. on 8 April,
1937
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327, it is well settled that an easement of necessity can only
arise when the property cannot be used at all and
not where it is merely necessary to the, reasonable enjoyment of
the property. If it had been impossible for the
plaintiffs to have any access to and egress from their own
property in any other direction than through the
disputed path, then they might have claimed effectively an
easement of necessity. But this is no such case and
they cannot claim an easement of necessity merely because by the
denial of the right of way now claimed they
are put to some inconvenience by having to leave their house by
a longer and more circuitous route if they
wish to proceed in an easterly direction. The judgment of the
Subordinate Judge so far as it proceeds on the
view that the plaintiffs are entitled to an easement of
necessity is, therefore, based on an incorrect idea of law,and the
Subordinate Judge would have been well advised to take note that
the legal advisers of the plaintiffs
themselves had not in the plaint set up any such case as an
easement of necessity. But for the respondents it is
said that the Subordinate Judge, at any rate, has held in
definite terms that the plaintiffs and their predecessors
have been enjoying the use of this pathway ever since the
transfer of the property to 'them in the year 1887,
and this, it is contended, is a sufficient finding to support
the decree passed by the Subordinate Judge which
should, therefore, be maintained even though some observations
in the course of the judgment are not
justified. But the Subordinate Judge, though finding that the
plaintiffs have been enjoying a right has not come
to a finding of all the elements necessary for the establishment
of a right of easement within the terms of
Section 26, Limitation Act. A right of easement becomes absolute
when the alleged right of way
has been peaceably and openly enjoyed by any person claiming
title thereto as an easement and as of rightwithout interruption
and for twenty years.
4. As pointed out in Nasiruddin v. Deokali AIR 1929 Pat. 124 :
115 Ind. Cas. 884 : Ind. Rul. (1929) Pat. 260,
there is a difference between the conditions in India and in
England which has a distinct bearing on the
presumption to be drawn in cases where a path has been used
habitually and for a considerable period by a
person whose right to use it as an easement is in dispute. As
his Lordship the Chief Justice there pointed out:
In English Law the exercise of a right of way and. similar
positive easements for a prolonged period gives rise
to the presumption that such exorcise was 'of right', that is to
say, it is presumed that the right of passage was
exercised without any permission express or implied on the part
of the owner of the servient tenement.
Accordingly it is to be presumed that if the owner of the
dominant tenement has for a long period passed over
the servient tenement that he did it from the beginning with a
claim of right, for it is unlikely that if he had not
such a right that the owner of the servient tenement would have
allowed him to pass. In India, however, and it
may be in other countries where such views of the exclusiveness
of landed property do not prevail, a mere
period of long user will not give rise to the presumption. It is
customary for the owner of a piece of waste land
not to raise any objection to the passage of strangers over such
land...
It follows that he who claims such a right by reason of long
user must plead and establish as a fact that he has
exercised his user under a claim of right....
The circumstances of Indian life do not give rise to the
presumption of a claim of right by mere long user.
5. That being so, the decision of the Subordinate Judge must be
set aside and the appeal must be remanded to
him to be heard again. If he finds that the right of way has in
fact been used by the plaintiffs, he will have to
determine the further questions indicated above as necessary to
be decided in order to establish a right of
easement within the meaning of, Section 26, Limitation Act.
Costs will abide the result.
Balkrishna Das vs Shyam Sunder Mandal And Ors. on 8 April,
1937
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