Mahila Simta vs Adakoo

Sanjay Yadav, J.—Heard on admission.

This second appeal at the instance of plaintiff is directed against the Judgment and Decree dated 21.3.2012 passed in Civil Appeal No. 65 A/2011 by First Additional District Judge, Tikamgarh affirming Judgment and Decree dated 24.2.2011 in Civil Suit No. 57 A/2010 by Civil Judge Class I, Niwadi.

Suit by the plaintiff was for declaration of easementary right of way marked as EFGH in the property marked ABCD in the suit plaint and for permanent injunction that defendants be prevented from interfering with the right over the suit property situated village Churari, Tahsil Niwadi, on the plaint allegation that suit land devolved into her mother Awadh Rani after death of her father Soore Yadav. That, Awadh Rani vide registered gift dated 18.6.1968 granted it to the plaintiff. That in the part defendant tried to create hindrance in the right of use of suit property which led her to file civil suit No. 37 A/1998 and Appeal No. 69 A/2004, whereon by judgment and decree dated 6.9.2004 she has been declared to be the owner of half of the suit property and since then she has the right of way over the portion marked as EFGH, which is being blocked by the defendants.

Defendant Nos. 1 and 3 denied the claim. It was denied that the portion EFGH in the suit map was ever used as common way. It was contended that the plaintiff has prepared wrong map.

Trial Court framed following issues:

Trial Court, however, non-suited the plaintiff on the finding that, she has failed to prove her right of way over the suit property and that any unauthorized construction has been raised thereover.

The Trial Court in paragraphs 11 and 12 returned following findings:

Appellate Court affirmed these findings while negating the claim of the plaintiff having perfected the easementary right under Sections 14 and 35(b) of Indian Easement Act, 1882 holding that unless established by evidence that right of way has been created and is apparent and continuous, the plaintiff is not entitled for the declaration as sought.

Section 13 acknowledges the principle that on the severance of tenements, the easements that arise over easement of necessity or continuous and apparent easements which are necessary to reasoned to enjoyment of the property granted, and which as quasi easement have been, and at the time of grant was being used by the grantor for the benefit of the part granted.

The burden therefore, being on the plaintiff to discharge, which she failed. This aspect find well analysed in paragraph 12 of the First appellate court judgment, reproduced as under:

Thus, there being concurrent finding of facts by both the Courts, no interference is warranted.

Consequently, there being no substantial question of law, appeal fails and is dismissed in limine. No costs.