TaxTMI 
TaxTMI 
2018 (9) TMI 2179
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....to as the original defendants and the respondents shall hereinafter referred to as the original plaintiffs. 3. The defendants are the owners of the land bearing Survey No.111 situated at village Limadhra, Taluka Visavadar, District Junagadh. The plaintiff no.1 is the owner of the land bearing Survey No.105 paiki 7 admeasuring H-1-13-1-A and Survey No.105 paiki 9 admeasuring H-1-34-56-A. The respondent no.2 - original plaintiff no.2 is the owner of the land bearing Survey No.105 paiki 3 admeasuring H-7-47-66-A and the respondent no.3 - original plaintiff no.3 is the owner of Survey No.106 paiki 1 admeasuring H-1-65-92-A situated at village Limadhra, Taluka Visavadar, District Junagadh. The respondents had been using the road/way passing through the Survey Nos. 122, 109 and 111 respectively to enter their fields/land from the village, and the same was being used past more than 100 years even by the ancestors of the respondents. The appellants started causing obstruction by blocking the road which passes through the middle of the Survey No.111 (appellants' land) due to which the respondents and other persons who had been using the same road started facing difficulties in enteri....
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....njunction is granted against the defendants that the plaintiffs have right and authority to walk from the alternative road located on the western side border in the land bearing survey no. 111, which is passing from inside part of the western side border of the land belonging to the defendant and no obstruction shall be caused by the defendants themselves or their men to the plaintiffs while passing from that road or carrying agricultural equipments or that the road shall not be altered in any manner. 4. It is further ordered that if the road is less than 12 feet wide, the defendant shall make this road 12 feet wide at their own cost within 30 days so that no hindrance or difficulty is caused to the plaintiffs while passing through the same. 4. The order passed below Exh.5 on 29.2.12 is hereby vacated by this order. Despite the same, to keep peace and harmony, both the parties shall maintain status quo as per the order passed below Exh.5 till the appeal period. 5. Parties to bear their own cost. 6. Decree be drawn accordingly." 8. The plaintiffs, being dissatisfied with the judgment and decree passed by the trial court, challenged the same by ....
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....UBMISSIONS ON BEHALF OF THE DEFENDANTS/ APPELLANTS : 12. Ms.Mandavia, the learned counsel appearing for the defendants, vehemently submitted that the lower appellate court committed a serious error in passing the judgment and decree. According to Ms. Mandavia, the trial court rightly invoked Section 22 of the Indian Easements Act as there is an alternative root available through Survey No.111. According to Ms. Mandavia, although the plaintiffs may have a right of way through the middle of the Survey No.111 owned by her clients, i.e. easementary right of way by grant, yet as there is an alternative root available passing through the border of the western side of the Survey No.111, the plaintiffs cannot insist that they should be permitted to use the way passing through the middle of the Survey No.111. Ms.Mandavia placed strong reliance on the following averments made in ground no.(D) as stated in the memorandum of the Second Appeal. "(D) The appellants submit that the Learned Appellate Court has not taken into consideration and appreciated the important fact that as per the Rojkam which is made by the plaintiff himself, no way in question was in existence. But the Learne....
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....l court committed a serious error in taking the view that as there is an alternative root available, the plaintiffs are not entitled to the main relief in view of Section 22 of the Indian Easements Act. Mr. Desai submitted that the alternative root/way as suggested by the trial court gets submerged for almost five months in a year during the monsoon. Mr. Desai placed on record few photographs showing the condition of the alternative way during the monsoon season. Mr. Desai invited the attention of this Court to Exh. 100 (Tippan). Exhibit-100 is a map which clearly shows the road passing through the Survey No. 111. Mr. Desai, the learned senior counsel submits that both the courts have concurrently held that the plaintiffs have a right of way through the road in the Survey No.111 and such right is an easementary right by way of grant. However, according to Mr. Desai, the trial court committed an error in thereafter taking the view that as there is an alternative way in the very same survey number, the plaintiffs should use that alternative way and not the one they have been using past many years. According to Mr. Desai, this part of the order of the trial court has been rightly corr....
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....es from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 16. As I have the opportunity of dealing with the subject of easement, let me give a fair idea as regards the various provisions of the Indian Easements Act. The term Easement is defined in Section 4 of the Indian Easements Act, 1882, which reads as under : "4. An easement is a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritag....
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....tial of an Easement : A] There must be an owner or occupier of certain land. B] There must be a right vested in such owner or occupier (as such owner or occupier) to do and continue to do something, or to prevent and continue to prevent something done in, or upon, or in respect of, some other land. C] The right must be for the beneficial enjoyment of his land. Thus, if the right is not in any way connected with the enjoyment of the dominant tenement (property) it cannot be an easement. D] The other land in or upon which the right to be exercised, must not be owned or occupied by him, but by some other person. Characteristics of an Easement : A] There must be a dominant and servient tenement. B] The right of easement must be possessed for the beneficial requirement of the dominant tenements. C] Dominant and servient owners must be different persons. D] The right should entitle the dominant owner to do and to continue to do something or to prevent and continue to prevent something being done, in or upon or in respect of the servient tenement. E] That something must be of a certain or well define....
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....acquire any right of easement over the defendants' tenancy land either under section 13 or section 15; for the benficial enjoyment of his land. There is however, no bar to his acquiring the right as a customary easement or on the basis of implied grant from the landlord but not on the basis of prescription. Tenant can acquire an easement over the adjoining land belonging to his landlord for the beneficial enjoyment of other immovable property not his own but belonging to someone else which also he happens to occupy for the time being as a tenant. Tenant can claim right of easement over his landlord's property based in immemorial user but not on prescription. C] Co-owner : Easmentary right can not be claimed by co- owner in respect of a land held by him in co-ownership with other. The other co-owner's consent is not necessary for the acquisition of any easement by any co-owner. But as his right of transfer of his interest is only a limited right he can not impose any easement on the joint property or any part thereof without the consent of his other co-owner. D] Lessee : No lessee can acquire an easement over the immovable property leased to him for the....
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....g the dominant heritage as it was enjoyed before severance. The quasi easement claimed must be in existence at the time when the severances took place. So that there may be possibility of an implied grant or an implied reservation. If they were not present at the time of severance but came into existence afterwards such right cannot be claimed as quasi easement under section 13. D] By prescription (section 15) :Prescription means acquisition of a right or title by user of possession during the period and in the manner prescribed by law. A man who can not show any other title may acquire property or certain rights by showing that he has been in possession of the property or enjoying rights for a very long time. The reason why the law encourages this mode of acquiring right is that, if a man after long, continue and uninterpreted user was required in every case to prove the origin of his title especially in the old times, when writing was not in vogue it would result in great hardship and injustice to him. (A) Easementary right of way and other varieties of easement rights can be acquired if (a) they have been enjoyed, (b) as an easement (c) for twenty years, (d) wi....
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....evolution takes place all those easements which are annexed or are appurtenant to the heritage transferred, unless a contrary intention appears. If nothing is mentioned in the instrument of transfer, all easement enjoyed before the transfer will pass to the transferee and in this respect, this section enjoins upon the transferor to have the transfer-deed drafted very carefully to avoid future litigation. H] By law/statue/legislature : certain laws/statute/ legislature has granted the easement. For e.g. Land Acquisitions (Mines) Act. I] By the operation of the doctrine of acquiescence :Where the servient owner by active encouragement or passive acquiescence or other such conduct, has inducted a belief in the dominant owner upon which the dominant owner has acted, he would acquire an easement over the servient property. RIGHT TO ALTER_MODE OF ENJOYMENT AND NECESSARY RIGHTS. Chapter III of the Indian Easements Act, contemplates the provisions regarding the incidents of easements. As per section 21 of the Act, an easement must not be used for any purpose not connected with the enjoyment of the dominant heritage. Illustration : A, as....
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....ect to the provisions of Section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. Exception - The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage. The dominant owner has been given full discretion in the enjoyment of an easement. However, he cannot violate the provisions of Section 22 of the Easements Act. In a way, Section 22 constitute an exception of Section 23. Similarly, restriction is imposed upon the dominant owner that he cannot impose any additional burden on the servient heritage while enjoying his right of easement in any way he likes. Thus, sufficient checks and balances have been provided on the right of the dominant owner to exercise his right of the easement. As held by Hon'ble Apex Court in Anguri, Smt. V. Jiwan Dass, reported in AIR 1988 SC 202. If, by alteration of mode and place enjoying easement, there occurs increase in burden of easement on servient owner, Section 23 does not protect such ....
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....any other person. 28. Disturbance means obstruction, interruption or disruptions. Disturbance in relation to easement law means that any such act that lessen the practical utility of the enjoyment of the easement. Interference with the right of easement may be graded into three degrees. 1) Interference which does not result into substantial damage and which gives no cause of action. 2) Interference which may cause damage but where injunction can not give relief but only damages would be sufficient. 3) Interference where injunction is the proper remedy. Remedies on disturbance of Easementary Rights: 29. Under Sections 33 to 36 of the Easements Act, various remedies provided to dominant owner to protect his right of easement. 1. Suit for compensation Section 33 of the Act prescribe that the owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto: provided that the disturbance has actually caused substantial damage to the plaintiff. Meaning of substantial damage : 30. Under the explanation of Section 33, meaning of the substantiv....
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...., 1963), an injunction may be granted to restrain the disturbance of an easement. (a) If the easement is actually disturbed then compensation for such disturbance might be recovered under this Chapter. (b) If the disturbance is only threatened or intended. When the act threatened or intended must necessarily, if performed, disturbs the easement. 3. The dominant owner can also file a suit for mandatory injunction to get executed his right of easement. Extinction of Easement : Section 37 - When from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished. Section 38 - An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner. Section 39 - An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement. Section 40 - An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified ac....
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.... An easement extinguished under Section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent court. A necessary easement extinguished under the same section revives when the unity of ownership ceases from any other cause. A suspended easement revives if the cause of suspension is removed before the right is extinguished under Section 47. 31. In the present case, there is no dispute with regard to the fact that the plaintiffs and their forefathers had been using the way passing through the Survey No.111 for the purpose of entering into their agricultural fields. The plaintiffs had to institute the suit for declaration and injunction as the defendants started creating obstruction. As the defendants started restraining the plaintiffs from using the road passing through the Survey No.111, the plaintiffs had to seek appropriate relief before the trial court. The trial court, as noted above, answered the first two issues in the affirmative, but later, took recourse of Section 22 of the Easements Act and held that as there is an alternative way available, the plaintiffs must use the less inconvenient wa....
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....one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case." 33. In the judgment reported in the case of Ponnan v. Peraman, 2006(5) CTC 573, the Madras High Court has held as follows : "It has to be pointed out that the question whether an easement is one acquired by grant (as c....
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.... to be taken over the premises of the servient owner has not been ascertained vide - Dhundaraj Balkrishna v. Ramchandra Gangadhar', AIR 1922 Bom 407. In - 'Venkatarama Ayyar v. Rangaswamy Ayyar', AIR 1943 Mad 741, it was held that in case of an easement by grant, the servient owner was not entitled to substitute a new path way for the old one and to ask the dominant owner to take a substituted path. Mr. Joshi in his work on Easements and Licenses (2nd Edition) has remarked at page 179 that the servient owner has the option of confinement which be could exercise at the earliest opportunity after completion of prescriptive period. In case of an easement of a defined way acquired by grant, there is no question of exercising option of confinement." 37. In the case of Wasudeo v. Shankar, reported in AIR 1925 Nag 168, the learned Judge has observed as under : "When once a right of way has been acquired, the servient owner cannot object to it on the ground of inconvenience, nor can he put an end to the right by showing that there is another path-way which the dominant owner might use - Sham Bagdee v. Fukeer Chand (6 W.R. 223) and Mokoondonath v. Shib Chunder (22 W.....
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....tered [Deacon v. The South Eastern Railway Company (1889) 64 L.T. 377] and the dominant owner is entitled to exert his strut rights unless ha can be induced to consent to a deviation. The defendant was aware of the existing right of way when be bought his premises and unless he can prove acquiescence in the new way the plaintiffs must succeed, The appeal must be dismissed with costs." 39. Justice Coyajee, in his separate but concurrent judgment, has observed as under : "I concur, and would add that Courts in this country have given effect to the general rule that when once the line of way has been definitely set out, neither the dominant nor the servient owner can compel the other to give or to accept a different and a substituted way In Syud Hamid Hossein v. Gervain 15 W.R. 496 Norman, C.J. observed: "We think it is clear that if any person has a right of way from one place to another over a particular line, if he and his ancestors have been accustomed to use that way from a long time past, he has a right to go over it, and cannot be compelled to use a different and substituted way." (Similarly, in Varajlal Parbhudas v. Moti Kuber (1893) P.J. 478, where the facts were ....
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....s under : "6. The contention of the learned Advocate for the appellants that so long as the persons entitled to use a pathway are allowed to go through some other part of the defendants' lands, they have no grievance, is untenable. To establish a right of way across a land, it is necessary to prove that the way connects one particular point with another through a specified line. The right of way whether it is claimed by immemorial custom or by a lost grant, as in this case, must be confined substantially to the same route. A right of way necessarily imports a right of passing along a particular route or line between two termini. 7. It is on this footing that it has been held that a person having a private right of way should enter the way at one and the same place only and not at any other. The dominant owner or the owner exercising the right of way is not entitled to alter the points or the route as he pleases. Any other rule would mean that the entire land of the servient owner could be invaded by persons claiming to exercise their right of way over his land and the owner of the servient heritage might be practically deprived of the profitable use of the ent....