SECOND APPEAL NO. 60/2010

17th January 2020

Petitioner Counsel: Shri M. P. Khajanchi
Respondent Counsel:
Act Name: Indian Easements Act, 1882 Specific Relief Act, 1963 Limitation Act, 1963

Section :
Section 15 Indian Easements Act, 1882 Section 35 Indian Easements Act, 1882 Section 34 Specific Relief Act, 1963 Section 37 Specific Relief Act, 1963 Section 38 Specific Relief Act, 1963 Section 25 Limitation Act, 1963

Cases Cited :
Para 11: Unnikrishnan Vs. Ponnu Ammal and others, AIR 1999 KERALA 405
Para 11: Bhagwanrao S/o Jijaba Auti Vs. Ganpatrao S/o Mugaji Raut and another, 1987(3) BCR 258
Para 11: Smt. Indumatiben Chimanlal Desai Vs. Union of India and another, AIR 1969 BOMBAY 423

JUDGEMENT

1. Heard.

2. This second appeal is of plaintiffs of RCS No. 51/2005, who succeeded in Trial Court but failed in first appeal of respondent/ defendant. The appellants’/plaintiffs’ suit was for mandatory injunction directing defendant to remove the thorny compound installed on the Dhura (dyke) of land Gat No. 117 and to restrain defendant from interfering into plaintiffs’ right to use Dhura for ingress and egress. The plaintiffs’ claim of right of way was by way of easement by prescription. It is plaintiffs’ case that the entire land bearing Survey No. 39 of Village Sakhara (Dara), Tahsil Wani, District Yavatmal was initially owned and possessed by two brothers namely Zitaji and Madhav. After their demise, the land was succeeded by their sons namely Ramaji and Dewaji who effected partition of equal share ad-measuring 18 acres. The land felling to the eastern side out of Survey No. 39 was allotted to the share of Dewaji whilst the land of western side came to the share of Ramaji. The land of Dewaji was succeeded by his one son Sitaram whilst land of Ramaji by his two sons namely Gosai and Yadav.

3. During consolidation scheme, the land of Sitaram was numbered as Gat Nos. 121/1 and 121/2. Likewise, the land held by the son of Gosai namely Anandrao was numbered as Gat Nos. 117 and 119. The land held by Yadao came to the share of Madhukar which was numbered as Gat Nos. 118 and 120. Anandrao sold his Gat Nos. 117 and 119 to one Jagan five years back who in turn sold Gat Nos. 117 and 119 in the year 2004 to the defendant. Likewise, Madhukar sold his land bearing Gat Nos. 118 and 120 to one Turare.

4. As regards to the land of Sitaram is concerned, it was inherited by Plaintiff Wasudeo and Leeladhar. Wasudeo possessed land bearing Gat No. 121/2 whilst Liladhar possessed land bearing Gat No. 121/1. It is plaintiffs’ case that in consolidation scheme the old Survey No. 39 was numbered as Gat Nos. 118, 119, 120, 121/1 and 121/2. Since inception, there was cart way on Dhura of Gat No. 117 for use of bullock carts. The said Dhura was used from the time of original owner Zitaji, Madhao and their successors. The plaintiffs were using Dhura for their bullock carts to carry agricultural implements. The use and occupation of Dhura continued though ownership of the land changed the hands time to time. It is plaintiffs’ specific case that they were using disputed Dhura as cart road without interruption from their forefathers. It was continuously used till 20.06.2005 when defendant has illegally blocked Dhura by installing thorny compound. Therefore, the plaintiffs prayed for the relief of mandatory injunction for removal of obstruction and perpetual injunction to restrain defendant from obstructing plaintiff’s use and occupation of disputed Dhura.

5. The defendant resisted the suit claim by denying plaintiffs’ right over Dhura. It is denied that the plaintiffs were using Dhura since time immemorable. Defendant contended that there are several alternate ways for plaintiffs to approach their own land. Besides that defendant denied alleged obstruction and prayed for dismissal of suit.

6. Precisely, the plaintiffs have claimed right of way by way of an easement by prescription. There was no prayer for declaration of the easementary right by way of prescription. The relief claimed is only for mandatory injunction directing the defendant to remove the obstruction and prohibitory injunction to restrain interference in the use of way. The defendant mainly challenged long standing use of Dhura and plaintiffs’ entitlement to the reliefs claimed.

7. The parties led oral evidence and filed certain documents. The Trial Court after examining the material held that plaintiffs have proved that since the time of original owner Zitaji, there was continuous use of Dhura to approach their land bearing Gat No. 121/1 and 121/2. Moreover, it is held that the defendant had illegally blocked the plaintiffs’ road on 20.06.2005 by installing thorny compound. With such principle findings, the Trial Court was pleased to grant the discretionary relief of injunction directing defendant to remove obstruction and further permanently restrained from causing obstruction. The defendant went up in first appeal. The First Appellate Court in its judgment held that plaintiffs had established that they have been using the northern and eastern side boundary of the defendant’s land since long and it was obstructed by the defendant. However, the First Appellate Court reversed the judgment on the ground that mere suit for injunction is not maintainable without claiming declaration of easementary right.

8. The learned counsel for appellants would submit that two Courts’ below concurrently recognized plaintiffs’ long standing right of way over disputed Dhura. So also, alleged obstruction is proved. According to him, the prayer of declaration is implicit in the prayer of injunction and therefore, the First Appellate Court erred in reversing the judgment of Trial Court. He would submit that the Trial Court has framed issue No. 1 pertaining to the proof of right of way by prescription and therefore, there was no legal obligation to claim declaratory relief in express words. With this contention, he prayed to reverse finding of First Appeal Court and confirm the decree passed by the Trial Court.

9. The plaintiffs have undoubtedly came with a case of long standing use of Dhura as pathway and on that basis, claimed relief of mandatory and perpetual injunction. Defendant resisted the suit by denying the plaintiffs’ right to use the disputed pathway. The defendant has suggested some alternative ways available and being used by plaintiffs. The plaintiffs led their own evidence and examined two witnesses in support of case. The defendant also led rebuttal evidence. The Trial Court held that plaintiffs have proved that since life time of original owner deceased Zitaji, they were in continuous use and occupation of disputed Dhura to approach their land bearing Block Nos. 121/1 and 121/2. Further more, it is held that the plaintiffs have proved that defendant had installed thorny bushes and blocked pathway. After appreciating the rival submissions, the First Appellate Court while answering point Nos. 1 and 2 held that plaintiffs have established that they have been using the north-east boundary of the defendant’s land Block No. 117 and alleged obstruction. However, the First Appellate Court declined to grant relief of injunction by holding that the plaintiffs have not claimed the relief of declaration and therefore, mere suit of injunction is not maintainable.

10. No doubt the suit was for simpliciter injunction. Notably in the memo of first appeal, there is no ground that suit could not have been decreed unless the right of easement has been claimed and established. So far as the finding of fact regarding long standing use of Dhura and obstruction is concerned, the concurrent findings have been recorded in the light of plaintiffs’ suit which are to be affirmed.

11. The real issue involved is one of maintainably of a suit for simpliciter injunction in present form without claiming declaration of easementary right. The learned counsel for the appellants would submit that the prayer of declaration is implicit in the prayer of injunction and therefore, suit is perfectly maintainable. To support said contention, he relied on the decision of Kerala High Court in reported case of Unnikrishnan Vs. Ponnu Ammal and others, AIR 1999 KERALA 405. On the similar line, he further relied on the decision of this Court in case of Bhagwanrao S/o Jijaba Auti Vs. Ganpatrao S/o Mugaji Raut and another, 1987(3) BCR 258. Moreover, reliance is placed on the judgment of this Court in case of Smt. Indumatiben Chimanlal Desai Vs. Union of India and another, AIR 1969 BOMBAY 423. The Kerala High Court had occasion to consider a similar issue about maintainability of suit for injunction sans prayer of declaration. After taking resume of various judgments, the Kerala High Court concluded that the Section 38 of the Specific Relief Act, or Section 35 of the Indian Easements Act, does not mandate requirement for a suit by dominant owner to seek the relief of declaration of his right of prescription.

12. It is seen from the orders impugned in the appeal that both the Courts’ below have recorded a concurrent finding of fact that the disputed Dhura was used by plaintiffs and their predecessor in title for ingress and egress from the time of Zitaji. Though none of the Court has rendered a finding that user was for more than 20 years, but it may be possible to infer such finding from the fact that the Dhura was used from the time of Zitaji from so many years. There is categorical finding of the Trial Court that from the life time of Zitaji, there is continuous use of disputed Dhura. It can be easily understood that after demise of Zitaji, the ownership has changed hands by four generations and percolated upto defendant. Thus, the use was obviously for more than 20 years, apparently, it was open and without obstruction. The plaintiffs have claimed right of way therefore, the right is certain and enjoyment is open. On facts, it is proved that the right is peacefully enjoyed without interruption for more that statutory period. Precisely, it is plaintiffs case about acquisition of easementary rights by way of prescription. In this background, the concurrent finding of fact regarding the claim of plaintiffs in respect of long standing use of Dhura appears to be arising logically from the facts of the case and cannot be seen to be perverse and arbitrary.

13. In other words, the position is that the plaintiffs seek the relief of injunction to protect the easementary right acquired by prescription without claiming specific declaration. Section 35 of the Indian Easements Act, provides for the remedy of injunction in case of actual disturbance or threatened or intended disturbance to an easementary right. Clause (a) of the aforesaid Section deals with the situation when the easement is actually disturbed, whilst Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. The plain reading of Section 35 of the Indian Easements Act, nowhere conveys that the mere suit for injunction is not maintainable without claiming the relief of declaration. There appears to be no embargo for a suit for mere injunction complaining of disturbance of easement which the Court is bound to grant, if the case is made out.

14. Section 34 of the Specific Relief Act, can be resorted for claiming declaratory reliefs. This Section limits the kinds of declaration that plaintiff is entitled to any legal character, or to any right as to any property. Proviso to Section 34 of the Specific Relief Act dis-entitles a plaintiff to claim mere declaration in the situation where he is able to seek further relief than a mere declaration of title but omits to do so. Contextually, if we go through Section 35 of the Indian Easements Act, there is no such rider which could preclude the Court from granting relief of injunction to restrain disturbance about easementary rights.

15. Section 37 of the Specific Relief Act pertains to injunction. Sub-section (2) provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. Section 38 of the Specific Relief Act, prescribes to grant perpetual injunction to prevent the breach of an obligation. Pertinent to note that operation of Section 34 of the Specific Relief Act. about declaratory decree is controlled by the proviso. However, there is no such restriction in Sections 37 and 38 of the Specific Relief Act while granting the relief of injunction.

16. The First Appellate Court has referred Section 15 of the Indian Easements Act, pertaining to acquisition of easement by prescription along with corresponding Section 25 of the Limitation Act. Meaningful reading of Section 15 of the Indian Easements Act reveals that the last para refers that such a period of 20 years shall be taken to be a period ending within two years next before institution of the suit wherein the claim to which such period relates is contested. It conveys that in order to acquire easement by prescription, it has to be obtained on contest through a suit. The said provision cannot be read to mean that the suit must be for declaration of such easementary right. In any suit of other kind, the issue of acquisition of easement by prescription if contested and proved, then it would meet the requirement. Moreover, the servient owner is very much party to the suit who contested the right.

17. Plaintiffs came with a suit for injunction to protect an easementary right of prescription. In the suit, the plaintiffs have discharged the burden of establishing their long standing use of pathway i.e. Dhura which is nothing but easementary right by prescription. The Trial Court has particularly framed issue No. 1 about such a right and on contest, it was proved. The plaintiffs’ right of enjoyment of pathway has been adjudicated by both Courts and therefore, merely because formal relief of declaration is not claimed, the plaintiffs cannot be non-suited. While establishing right of pathway, the plaintiffs have duly proved all the requirements to establish easement by way of prescription that too in the suit. The relief of declaration is implicit in the relief of injunction which is proved on contest by suit and therefore suit in present form is maintainable.

18. In the situation, the concurrent finding about plaintiffs’ right to use Dhura (pathway) and obstruction at the hands of defendant, requires no interference. The suit was dismissed by the First Appellate Court on technical front holding that there was no specific prayer of declaration regarding easementary right by way of prescription. Since the prayer of declaration is implicit in the prayer of injunction and already said issue was adjudicated in existing suit, the plaintiff cannot be deprived on mere technicalities. The plaintiffs have duly proved existence of their right over pathway and breach of an obligation existing in their favour. Hence, they are entitled for the relief of injunction as decreed by the Trial Court.

19. In view of above, the order of reversal passed by the First Appellate Court is not sustainable. The appeal is allowed. The judgment and decree passed in first appeal is set aside and the decree passed by the Trial Court is restored. No costs.