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Judgment
@JUDGMENT-JUDGMENT
Sanjay K. Agrawal, J
Heard on admission and formulation of substantial question of law for determination in the second appeal preferred by the Appellant / Plaintiff.
By the impugned judgment and decree, the first appellate Court has affirmed the judgment and decree of the trial Court dismissing the suit filed by
the Appellant/Plaintiff.
The Appellant/Plaintiff preferred a suit for declaration of title and permanent injunction stating inter alia that the Appellant/Plaintiff is registered
under the provisions of the M.P. Society Registration Act, 1973 and running a school in the name of 'Radiant Way' since 1998 and for the entrance of
school, the open land of Defendant No.1 is being used by the Plaintiff since 1998 and it was used by the Appellant/Plaintiff from 1998 to 2002 without
any interference and without payment of fee till 2002. It was further pleaded that in the year 2002 Executive Council of Pt. Ravi Shankar Shukla
University/ Defendant passed a resolution to recover a sum of Ten Thousand Rupees per annum towards use of the suit pathway from the
Appellant/Plaintiff which was communicated to the Plaintiff by memo dated 25-1-2003 and accordingly, the plaintiff has paid the said amount for using
the suit pathway for the year 2002-03, 2003- 04 and 2004-05. But, for the year 2005-06 and 2006-07, the amount of Twenty Thousand Rupees sent by
the Appellant/Plaintiff to the Non-Applicants/Defendants was returned to the Appellant/ Plaintiff without assigning any reason on 27-10-2006 and
thereafter, on 29-6-2007, the Non-Appellants/Defendants started digging in the suit pathway in front of the school for constructing boundary wall
leading to filing of suit for declaration of title and permanent injunction.
The Non-Applicants/Defendants filed their joint written statement stating inter alia that no such permission/ leave has ever been granted by the
Non-Applicants/Defendants to the Appellant/Plaintiff to use the pathway and Rupees Thirty Thousand paid by the Appellant/Plaintiff to the Non-
Applicants/Defendants was towards damage to the road and electric pole owned by the Non-Applicants/ Defendants. It was also pleaded that the
Appellant/ Plaintiff has alternative and actual way to approach the school as such, the suit deserves to be dismissed.
The trial Court upon appreciation of oral and documentary evidence on record, dismissed the suit holding that the plaintiff has failed to prove any
agreement/contract with respect to the disputed suit pathway and the plaintiff has alternative way to approach the school through Mahoba Bazar
Chowk to Damar Talab, Amanaka Police Station, Raipur.
Feeling aggrieved against the judgment and decree of the trial Court, the Appellant/ Plaintiff preferred first appeal before the first appellate Court
and the same was dismissed by the first appellate Court affirming the judgment and decree of trial Court against which this second appeal has been
preferred.
Mr. B.P. Sharma, learned counsel for the appellant/plaintiff, would submit that both the courts below are absolutely unjustified in dismissing the suit
by holding that the plaintiff has failed to prove any agreement/contract with respect to the suit pathway ignoring the plea based on Section 8 of the
Indian Easement Act. He would further submit that both the courts below have concurrently erred in holding that easement by implied grant has not
been proved by the Appellant/Plaintiff by recording a finding which is perverse to the record and relied upon the decision of the Supreme Court in the
matter of Hero Vinoth (Minor) v. Seshammal (2006) 5 SCC 545.
In a suit filed for declaration of title and permanent injunction by the Appellant/Plaintiff on 22-6-2007 it was only pleaded that he was using the
pathway since 1998 and used the suit pathway from 1998 to 2002 without interference and without payment of any fee and pursuant to the decision of
Executive Council since 2002-03, 2003-04 and 2004-05 they have paid Rupees Thirty Thousand towards the use of said pathway but thereafter, the
Non-Applicants/ Defendants have refused to take amount from 2005-2006. It was pleaded as under: -
(4) 1998 . , .
1998 2002 2002
. 10,000.00 ;
1 . 3
376//2003 25.01.2003 3
.
(5) . 25.012003
2002-03, 2003-04, 2004-05
. 10,000.00 ; .
- 1.
0229949 10.02. 10,000.
◌
012371 16.03. 20,000. (6) 2.003
A careful perusal of the above-stated averment of the plaint would show that it is the case of the plaintiff that he was using the said pathway from
1998 to 2002 without payment of any fee to the Respondents/Defendants and from 2002 to 2005 i.e. for three years the Appellant/Plaintiff has paid a
sum of Ten Thousand Rupees per annum to the Respondents/Defendants in lieu of using the said pathway as per letter dated 25-1-2003 (Exhibit P-3).
Both the courts have held that the Appellant/Plaintiff has failed to prove existence of any agreement between him and the
Respondents/Defendants with regard to the pathway and amount paid vide Exhibit P-8 is towards maintenance of suit pathway and it has been
concurrently held by the two Courts below that the Appellant/Plaintiff has alternative way of approaching the school from Mahoba Bazar Chowk to
Damar Talab, Amanaka Police Station, Raipur.
In the Second Appeal grounds urged are based on Section 8 of the Indian Easement Act, 1882 which states as under:
Who may impose easements. -An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer
his interest in the heritage on which the liability is to be imposed.
Illustrations
(a) A is tenant of B 's land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease. A may impose
an easement on the land to continue during the time that the lease exists or for any shorter period.
(b) A is tenant for his life of certain land with remainder to B absolutely. A cannot, unless with B 's consent, impose an easement thereon which will
continue after the determination of his life-interest.
(c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on the land or on any part thereof.
(d) A and B are lessees of the same lessor, A of a field X for a term of five years, and B of a field Y for a term of ten years. A' s interest under his
lease is transferable; B' s is not. A may impose on X, in favour of B, a right of way terminable with A 's lease.
Under Section 8, an easement may be imposed by any one in the circumstances and to the extent, in and to which he may transfer his interest in the
heritage on which the liability is to be imposed. A grant of an easement may be made orally without any writing because the creation of easement by
the servient owner over the land in his ownership or occupation does not amount to a transfer of ownership. The grant of easement may be express or
implied from the circumstances and conduct of the parties to the easement. It may be presumed from the long user or may be inferred from some
usage prevailing in the locality.
The Madras High Court in the matter of Ratanchand Chordia v. Kasim Khaleeli AIR 1964 Mad 209 Â has held that in absence of any express
grant of easement does not negative an implied grant of such easement. The Madras High Court further in the matter of K. Govindarajulu Chettiar v.
V.N. Srinivasalu Naidu AIR 1972 Madras 207 Â relying upon Ratanchand (supra) clearly held that the question whether a grant can be implied or not
would only arise where there is no express grant. It is from the attendant circumstances and other documentary evidence that an implied grant has to
be inferred.
The Supreme Court in the matter of Sree Swayam Prakash Ashramam and Anr. v. G. Anandavally Amma and Ors. AIR 2000 SC 622,
considering Section 8 of the Easement Act held as under:
.............It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence
adduced in the case that the `B' Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the
respondents even after construction of the building in 1940 in `A' Schedule property of the plaint. The appellants also did not dispute the case of the
original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in
dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to `A'
Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the
appellants that since there was no mention in the deed of settlement enabling the use of `B' schedule pathway for access to `A' schedule property and
the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of
the use of the `B' schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since
deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to `B' schedule property of the
plaint for its use as pathway to `A' schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of
any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for
access to the `A' schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been
continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an
implied grant in respect of the `B' Schedule property of the plaint. It is an admitted position that both `A' schedule and `B' schedule properties of the
plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the
settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it
was the desire of Yogini Amma to grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original
plaintiff (since deceased) to have `B' schedule property of the plaint as a pathway could not have been taken away. In Annapurna Dutta v. Santosh
Kumar Sett & Ors. [AIR 1937 Cal.661], B.K.Mukherjee, as His Lordship then was observed : ""There could be no implied grant where the easements
are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily
come under the rule. Exception is no doubt made in certain cases, where there is a `formed road' existing over one part of the tenement for the
apparent use of another portion or there is `some permanence in the adaptation of the tenement' from which continuity may be inferred, but barring
these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.
It is well settled law that a right of easement is a precarious and special right claimed over the land of another. A party claiming or relying on
easement should plead the nature of title thereto as to clearly show the origin of right, whether it arises by statutory prescription etc. and whenever a
right of easement is claimed, pleading should be precise and clear and it should not be vague, as right of easement is one which a person claims over a
land which is not his own.
In the matter of Surendra Singh Inder Singh and another v. Phirozshah Bairamji and another AIR 1953 Nagpur 205, a Division Bench of the
Nagpur High Court held thus:--
(9) It is necessary to point out that pleadings in a case dealing with easement have to be very precise. As has been stated by Peacock in his 'Law
Relating to Easements in British India', third Edition at Page 608:--
As an easement is not one of the ordinary rights of ownership, it is necessary that either party claiming or relying on an easement should plead the
nature of this title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old
common law method of a lost grant.
Reverting to the facts of the case in light of the settled legal position qua the easementary rights claimed under Section 8 of the Indian Easement
Act, it is quite vivid that in the plaint filed before the trial Court that the Plaintiff/Appellant only pleaded that the suit pathway is being used by the
Plaintiff/Appellant for the purpose of school since 1998 and he did not pay any amount for using it from 1998- 2002 and in the year 2002, Executive
Council resolved for payment of Rs.10,000/- per annum payable to Defendant No.1 and which was directed to be paid by Defendant No.3 to the
Plaintiff and on 25-2-2003 which he (plaintiff) paid for the year 2002-2003, 2003- 2004 & 2004-2005 @ Rs. 10,000/- per annum, but thereafter, when
the Plaintiff sought to make payment for the year 2005-2006 and 2006-2007, it was returned by Defendant No.2 without reasonable basis and
thereafter, the defendants started interfering with their possession by raising construction. The aforesaid pleading would clearly show that there was
no specific pleading of easement under Section 8 of the Indian Easement Act by the plaintiff except use of suit pathway from the year 1998 to 2002
and thereafter, it was being used with the leave of the Defendants which the Defendants have refuted as such, there is no pleading at all based on
Section 8 of the Indian Easement Act and further, there is no evidence at all on record. Even otherwise, for want of necessary pleading and evidence
based on Section 8 of the Indian Easement Act, the trial Court has rightly held that the Plaintiff is not entitled for decree for declaration and permanent
injunction and the first Appellate Court has rightly affirmed the judgment and decree of trial Court and consequently the decision relied upon in Hero
Vinoth (Minor) (supra) is clearly distinguishable to the facts of the present case.
I do not find any perversity and illegality in the said findings concurrently recorded by the two Courts below. The second appeal deserves to be
and is accordingly dismissed in limine without notice to the other side. No cost(s).