Balkrishna Das vs Shyam Sunder Mandal And Ors.

on 8 April, 1937

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 given by 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.
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Balkrishna Das vs Shyam Sunder Mandal And Ors. on 8 April, 1937

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 right without 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.

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