Second Appeal No.49 of 1990

5th July, 2005

Petitioner Counsel: Mr. J. N. CHANDURKAR
Respondent Counsel: Mr. KHARE

JUDGMENT

JUDGMENT :- Invoking the jurisdiction of this Court under section 100 of the Code of Civil Procedure, the appellant-defendants have filed this second appeal challenging the judgment and decree dated 5-12-1986 passed by the District Judge in Regular Civil Appeal No.25/1986, whereby the appeal has been partly allowed and the judgment and decree passed by the trial Court is set aside and the defendants are restrained from disturbing the use of the lane of the present width (of which location is shown in schedule C) up to the extent of 35 feet from the northern end towards south and further restrained from constructing or committing any act that would offend the plaintiff's right to use the lane over the aforesaid 35 feet part of the lane.

2. Brief facts are required to be stated as under. :

The plaintiff and defendants are from the same family and they owned ancestral property which was the subject matter of the partition. The partition deed dated 01/1/1949 (Exh.63) was reduced into writing. The father of the plaintiff and each brother got separate share in the property. The father of the plaintiff got a building. To the east of the plaintiff's house there is lane. The width of the lane is about 2 or 21/2 ft. and length along south-north is about 100 or 140 ft. The aforesaid lane was kept open for the use of the plaintiff and defendant No.1 and the plaintiff was given right to keep doors and windows and also to let the rain water flow through this lane. Later on 5-9-1969 there was partition between the plaintiff and his father and the property in question came to the share of the plaintiff. The right of user of aforesaid lane available to the plaintiff's father and subsequently to the plaintiff was limited to descendants from the family of the plaintiff. The plaintiff claimed that the defendants started encroaching upon the land and some southern portion of the land came to be occupied in spite of protest. Ultimately, the southern end of the lane came to be totally blocked and to some extent there was some construction also in the lane. Almost half the land thus came to be covered by the construction till March, 1983. The defendants had also closed the north entrance of the land and had started raising pillars, and therefore, the plaintiff was constrained to file the suit for perpetual injunction restraining the defendants from making any construction in the said lane.

3. The defendants contended that since prior to 1975-76, the portion of land had been covered by a slab and half of the portion from the southern side of the lane has almost been blocked by raising construction and thus the entry from that side is closed since about 1957, and therefore, the right of easement has been extinguished as it has not been enjoyed continuously for the statutory period of twenty years prior to the institution of the suit, and therefore, the suit is barred by limitation.

4. The trial Court on appreciation of the evidence dismissed the suit and held that the suit has been barred by limitation as the plaintiff has failed to establish continuous user for the statutory period of twenty years. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff carried appeal to the District Court. The learned District Judge on re-appreciation of the evidence and considering the law position has allowed the appeal partly and restrained the defendants from disturbing the user of the land of the width up to the extent of 35 ft. from the northern end towards south and further restrained from making any construction or committing any act that would offend the plaintiff's right to use the lane over the aforesaid 35 ft. part of the lane. This judgment and decree passed by the appellate Court is challenged in this second appeal.

5. Mr. Chandurkar, learned counsel for the defendants pointed out that in view of section 47 of the Indian Easements Act, 1872 (for short, the Act), the right of easement has been extinguished by non enjoyment because admittedly the slab has been put up on half of the lane and the construction of the slab was completed in the year 1983 and even the lane was blocked prior to 1969 when the plaintiff was minor and when he was living joint with his father. He contended that the plaintiff himself had shifted from his house somewhere else and kept the tenants in his house who had no right to enjoy the use of the said lane and the right of plaintiff for easement has been extinguished. He contended that the trial Court has rightly recorded the findings that the suit of the plaintiff has been barred by period of limitation.

6. Mr. Chandurkar, learned counsel for the defendants further contended that the easementary right claimed by the plaintiff would not be covered by the provisions of section 13 of the Act though it is an admitted position that in the partition deed such a right was granted to the plaintiff's father on 1-1-1949. He contended that in such circumstances, the substantial question of law involved in this appeal is whether the right of the plaintiff has been extinguished in view of section 47 of the Act and the suit is barred by limitation and in such circumstances, the impugned judgment and decree passed by the learned District Judge cannot be sustained in law.

7. Mr. Khare, learned counsel for the plaintiff contended that the right of user of the lane for the purpose of light and air as well as for entry from the southern door has already, been granted in the partition deed (Exh.63) which was executed by the parties on 1-1-1949. He contended that easementary right acquired by the plaintiff is an easement of necessity within the meaning of section 13 of the Act. He contended that question of extinguishing of the easement on account of non-enjoyment of the user of the lane, does not arise especially when the portion up to the extent of 35 ft. from the northern end towards south has been left open by the defendants while they started the construction in their property and the appellate Court has considered the scope of section 47 and recorded finding that there was no cessation of enjoyment by non-enjoyment of the easementary right by the plaintiff. He contended that the appellate Court was perfectly justified in granting decree as stated above and simply (because) the tenants did not use the said lane, that would not amount to relinquishment of the right available to the plaintiff which has been granted to his father under the partition deed and in such circumstances, no substantial question of law arises in this appeal and the same is liable to be dismissed.

8. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is necessary to reproduce section 47 of the Easement Act which contemplates as under :

"47. Extinction of non enjoyment. - A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.

A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.

Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and in the case of a discontinuous easement from the day on which it was last enjoyed by any person as dominant owner :

Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers, under the Indian Registration Act, 1877, a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration.

Where as easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other times, or between other hours, or for another purpose, does not prevent its extinction under this section.

The circumstances that, during the said period, no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do is does not prevent its extinction under this section.

An easement is not extinguished under the section -

(a) where the cessation is in pursuance of a contract between the dominant and servient owners;

(b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period; or

Where several heritage are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such right shall, for the purposes of this section, be deemed to be a single easement."

9. Section 13 of the Easement Act contemplates as under ;

"13. Easement of necessity and quasi-easement - Where one person transfers or bequeaths immovable property to another.-

(a) if an easement in other immovable property of the transferor to testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or

(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;

(c) if an easement in the subject of the matter or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or

(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transfer of the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement."

10. In the present case it is not disputed that there was a partition between father of the plaintiff and brothers and the partition deed (Exh.63) was executed by the parties on 01-1-1949 whereby the plaintiffs father was granted a right of easement to use the disputed lane in order to have access from the southern door from the northern end and also for the purpose of getting air and light from the said open lane.

11. The appellate Court has considered this aspect of the matter and observed that section 4of the Easement Act defines easement. An easement is a right which the owner has for beneficial enjoyment over the land belonging to another. Briefly stated therefore, since the plaintiff claims to have right of beneficial enjoyment over the lane in question, belonging to the defendants, it would appear to be an easementary right within the meaning of section 4 of the Easement Act. However, section 47 provides that; an easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years. Since the evidence led by defendant No.1 shows that the father of the plaintiff used to enter in that lane till about 1955, and thereafter he did not enter in the lane because the property was let out to the tenant, he had ceased to use and enjoy benefits of the lane since that time. Thus, unbroken period commencing from 1955 continued for more than twenty years as contemplated under section 47 of the Easement Act, and therefore, the suit filed by the plaintiff in 1983 was barred by limitation. This finding has been recorded by the trial Court, but in para 6 of the deposition, defendant No.1 has stated that the father of the plaintiff used the lane till 1955. His deposition further shows that in order to exercise his right of entry in the land he used to keep northern door of the lane open and used to enter in it. This clearly means that the closure of then northern door of the lane by defendant No.1 was not for totally stopping the entry by the plaintiff or his father. The very fact that in spite of such closure of the door, defendant No.1 had allowed the father of the plaintiff to open that northern door and get in the lane by itself is an indication that he had acknowledged the right of the plaintiff or his father to enter in the lane and the closure of the door was not intended to totally stop him from entering, or did not amount to denial of his right.

12. The appellate Court has considered the question as to when first time such a question of denial arose. The evidence shows that defendant No.1 had fixed certain tins to the northern door of the lane so as to prevent theft and thus he reinforced the obstruction. Fixing of the tins to the northern door of the lane or closure of the northern door of the lane was intended or meant for denial of right if the plaintiff or his father to use lane or enter in the lane. The defendant nowhere says that such a fixing of tins or the closure of the door was with the sole intention to deny the right of the plaintiff to enter in the lane. On the other hand his own evidence shows that in spite of such closure of the door till 1955, the father of the plaintiff was allowed to enter in the lane by opening that door. Under these circumstances, the appellate Court rightly observed that the right of the plaintiff consists of not only entry in the lane but also in keeping door and windows in the lane and such a right has been acquired by the plaintiff under partition deed (Exh.63), and therefore, question of ceasing of enjoyment of the use of the easement does not arise, and therefore, the suit is not barred by period of limitation.

13. There is no reason for this Court to take a different view of the matter. Even if the tenants continued to occupy the property during some period, that by itself would not amount to relinquishment of the right available to the plaintiff. At the most the lessees were using the property under the lease deed, but the ownership and the rights attached to the ownership of the property remained with the plaintiff or with his father, and therefore, such a right was still available to them if they wanted to exercise it. That there was no occasion to exercise such right by itself does not amount to extinction of the right. In such circumstances, it is not possible to accept the contention of the learned counsel for the defendant that the right of easement has been extinguished by non-enjoyment within the meaning of section 47 of the Easement Act.

14. Bare reading of the provisions of Clause (e) and (f) of section 13 of the Easement Act, it would reveal that; if the partition of the joint family property is made amongst several persons and 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 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. The case of the plaintiff has been covered by clause (e) to section 13 of the Easement Act because by virtue of the partition deed, the plaintiffs father acquired the right of easement on 01-01-1949 and be continued to enjoy the same. It is not the case of defendants that any other lane is available for getting light and air to the house of the plaintiff and also for entering in to the house of the plaintiff, therefore, by virtue of Clause (e) of section 13, the right of easement granted in the partition deed and user of the said easement would be necessary for enjoying the share of the plaintiff and in such circumstances, it is apparent that the easement acquired by the plaintiff is an easement of necessity, and therefore, in such circumstances, this Court is of the considered opinion that no substantial question of law is involved in this appeal. There is no merit in the appeal, the same is devoid of any substance and as such it stands dismissed with no costs.

Appeal dismissed.