Winding-up jurisdiction does not allow creating encumbrances on third-party land; easement of necessity requires no alternative access.

The winding-up court lacks statutory power to create encumbrances or grant a right of way over land owned by non-parties; an order purporting to impose such an easement on third party property is unsustainable and set aside. An easement of necessity arises only where, at severance, no practicable alternative access exists and the claimant bears the burden of proving absence of any alternative; an "as is where is" sale with express conveyance language selling free of encumbrances and evidence of an alternative albeit inconvenient route defeats a claim to an implied easement. The purchaser may take possession via the alternative route or seek a refund if that route is unusable.

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Issues: (i) Whether the winding up Court could, in the course of winding up proceedings, create an easement or otherwise encumber property belonging to a third party (non-party to the winding up). (ii) Whether an easement of necessity or other easementary right arose in favour of the purchaser over the third party's land, given the availability of an alternative access and the sale being on an "as is where is" basis.

Issue (i): Whether the winding up Court has power to create an encumbrance (right of way/easement) over property belonging to a third party not subject to the winding up.

Analysis: Section 446(2) of the Companies Act, 1956 confines the jurisdiction of the winding up Court to matters relating to the company and its property; powers conferred by that provision are limited and do not include creating encumbrances on third party property which is not the subject matter of the winding up. The power to grant specified reliefs implies prohibition of reliefs not authorized by the statute. Creating a right of way over land belonging to non-parties and not forming part of company assets falls outside the statutory scope.

Conclusion: The winding up Court lacked jurisdiction to create an encumbrance on the third party's property; the order purporting to grant a right of way over the third party's land is not sustainable.

Issue (ii): Whether an easement of necessity arose in favour of the purchaser over the third party's land, or whether an easement could be implied despite the sale being on an "as is where is" basis and the existence of an alternative access.

Analysis: Easement of necessity arises only where, at the time of severance, there is no alternative mode of access to the retained land and onus lies on the claimant to prove absence of any alternative. Prescription or express grant were not pleaded or established. The sale was effected on an "as is where is" basis with opportunity to inspect, and the conveyance to predecessors contained express language selling free from encumbrances, indicating no reservation of easement. Evidence showed an alternative albeit inconvenient passage from Guha Road; inconvenience alone does not give rise to an easement of necessity. Long non-use and the existence of an alternative route defeat a claim of necessity.

Conclusion: No easement of necessity or other easementary right was established in favour of the purchaser; the purchaser's claim to a right of way over the third party's land is rejected.

Final Conclusion: The appeal is allowed and the impugned order granting a right of way over third party property is set aside; the purchaser remains entitled to take possession by the alternative route originally directed or seek refund of the purchase consideration if possession by that route cannot be effected.

Ratio Decidendi: A winding up Court's statutory jurisdiction under Section 446(2) of the Companies Act, 1956 does not empower it to create encumbrances on property belonging to third parties not subject to the winding up; additionally, an easement of necessity arises only where no alternative access exists at severance and cannot be implied against express contractual terms or where a practicable alternative route exists.

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