1963 (7) TMI 107 - HC - Indian Laws

Court Confirms Prescriptive Right of Way; Easement Not Extinguished by Displaced Persons Act, 1954

The Court upheld the plaintiff's prescriptive right of way over the pathway A B C D, rejecting the lower appellate Court's finding of permissive use. It ... - ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment are: Whether the plaintiff has a prescriptive right of way over the pathway A B C D, either acquired by prescription or implied grant. Whether the prescriptive right of easement, if any, was extinguished by the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Whether the absence of an express grant in the settlement deed negates the possibility of an implied grant of easement. Whether the defendants' purchase of the property was free from all encumbrances, including easements, under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.ISSUE-WISE DETAILED ANALYSIS1. Prescriptive Right of WayRelevant legal framework and precedents: The Indian Easements Act, Section 15, provides that a right of way can be acquired by prescription if it has been peaceably and openly enjoyed as an easement and as of right, without interruption, for twenty years.Court's interpretation and reasoning: The Court emphasized that the expression 'as of right' means the enjoyment should not be secret, by stealth, or by the sufferance or leave of another. The Court noted that long continued user gives rise to a presumption of a legal origin of the right.Key evidence and findings: The trial Court and the lower appellate Court accepted evidence that the pathway was used by occupants and visitors of Rushkrum. However, the lower appellate Court erroneously inferred that the use was permissive due to common management of the properties by Khaleel Shirazee.Application of law to facts: The Court found that the user of the pathway was as of right, rejecting the lower appellate Court's reasoning of permissive use.Treatment of competing arguments: The defendants argued that the right was not exercised as of right for the required period and that it was permissive. The Court rejected this, emphasizing the presumption from long user.Conclusions: The Court concluded that the plaintiff established a prescriptive right of way through A B C D.2. Implied Grant of EasementRelevant legal framework and precedents: An easement may arise by implication if the intention to grant can be inferred from the terms of the grant or the circumstances.Court's interpretation and reasoning: The Court considered that the absence of an express grant does not preclude an implied grant, especially when the grantor's intention can be inferred from the circumstances.Key evidence and findings: The settlement deed did not expressly grant a right of way, but the Court inferred an intention to grant from the fact that the pathway was the only access to the property at the time of the settlement.Application of law to facts: The Court inferred an implied grant of easement based on the circumstances surrounding the settlement deed.Treatment of competing arguments: The defendants contended that the absence of an express grant negated an implied grant. The Court found this argument untenable.Conclusions: The Court concluded that an implied grant of easement existed in favor of the plaintiff.3. Extinguishment of Easement by StatuteRelevant legal framework and precedents: The Displaced Persons (Compensation and Rehabilitation) Act, 1954, Section 12(2), provides that evacuee property vests in the Central Government free from all encumbrances.Court's interpretation and reasoning: The Court interpreted 'encumbrances' in the context of the Act, noting that it should not include easements, as this would lead to unjust results without compensation.Key evidence and findings: The Court distinguished the Act from the Land Acquisition Act, which explicitly includes easements as encumbrances.Application of law to facts: The Court held that the plaintiff's easement was not extinguished by the Act, as easements were not intended to be included as encumbrances.Treatment of competing arguments: The defendants argued that the easement was extinguished under the Act. The Court rejected this, emphasizing the need for a fair interpretation that avoids unjust consequences.Conclusions: The Court concluded that the plaintiff's easement was not extinguished by the Displaced Persons (Compensation and Rehabilitation) Act, 1954.SIGNIFICANT HOLDINGSPreserve verbatim quotes of crucial legal reasoning: 'The true meaning of the expression 'as of right' is that the enjoyment of the right should not be secret or by stealth or by sufferance or the leave and licence of another person.'Core principles established: Long user of a right can give rise to a presumption of a legal origin, and easements are not necessarily extinguished by statutory provisions unless explicitly stated.Final determinations on each issue: The Court upheld the plaintiff's prescriptive right of way and implied grant of easement, and determined that the easement was not extinguished by the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The Letters Patent Appeal was dismissed with costs.