1) if your neighbour has not filed any reply and does not attend court in person court can proceed with hearing of your application and pass ex parte orders

2) draw attention of trial court to fact that court has directed application should be disposed of expeditiously and preferably within period of 2 weeks

Hi, the lower court has power to restore the pathway which is there at the time of filling the suit.

2. The plaintiff has started drag the matter you have to file an application before the lower court that as per the direction of the session court the application has to be dispose off with in 15 days but the after completion of two months matter has not dispose off wherefore dispose the application as early as possible.

3. The lower court has to obey the order of the session court and it will pass appropriate order.

The appellate court has clearly stated that application under Section 144 CPC for restitution may be filed before lower court being the appropriate forum and lower court shall decide said application preferably within two

weeks from the date of its institution. If the opponent is deploying dilatory tactics, you may ask your advocate to remind the lower court about the instruction of the higher court and request for an expeditious order. .

The decision by the lower court shall be on the basis of merits on both the sides, however as properly observed by the appellate court, the balance of convenience is in your favor, you have more chances of winning.

1. The application was filed in the pending civil suit. Once the suit was withdrawn the application became infructuous.

2. What you require is an order of restoration of the demolished path. You can file a separate suit to get the appropriate order.

1)you have raised multiple queries on the said issue

2) we had advised you to file suit claiming easmentary right of necessity and prescription but you did not do so

3) your neighbour filed suit to restrain you from using right of way but court permitted your to use the pathway to access your land

4) court has directed expeditious hearing of application for restoration of pathway . Court can pass orders To direct plaintiff to restore pathway as your misc application remains pending

The plaintiff has filed an application to withdraw the case, the court has not passed any order on that application so far, right?

The trial court will not pass any order to that effect while your application under section 144 is pending and also there is a direction of high court in this regard.

In general, a trial court cannot dispose a suit without disposing a pending IA, so you may put pressure on that aspect.

1. Your application has now lost its legal sheen.

2. Filing a separate suit is the only remedy for the restoration of the demolished path.

1) your lawyer should have opposed application for adjournment

2) they had sufficient time to file reply

3) file suit for claiming easementary right of necessity and seek stay restraining neighbour from disturbing your right of passage

If you apprehend that the respondent is deploying dilatory tactics with an intention to dispose the property in the interim period, you may put pressure before the court stating that the appellate court has instructed to dispose the case in 15 days whereas the respondent is not bothered to comply. You may also file an injunction application seeking the court to restrain the defendants from alienating the property till disposal of this suit based in your apprehension, the court observing the attitude of the respondent may grant you an injunction.Consult your advocate and proceed.

The application has become infructuous. If you want to stop them from selling the land then seek injunction through a separate suit.

1) We had advised you to file suit claiming easementary right of necessity and seek stay restraining your neighbour from disturbing your right of passage

2) you did not do so for reasons best known to you

3) you should now file appeal against order passed by trial court . Explain court commissioner report was mad after path had been dismantled by the plaintiff

4) also file suit claiming easementary right

Advert to what I told you earlier. The application cannot be entertained by the court as the main case was withdrawn. You inevitably require to file a fresh suit for restoration of path. There is no other remedy.

Now you have no option than to file a suit for easementary rights with an application for injunction restraining the defendants from obstructing your use of path way till the disposal of the main suit.

Also you may prefer an appeal against the order passed by trial court on the basis of report by Advocate commissioner appointed by the court.

1) you can claim easementary right of necessity as this pathway is only access to your land

2) in addition you can claim easementary right of prescription as pathway was enjoyed by you for over 30 years

1) I have already advised you telephonically

2) file suit claiming easementary right at earliest and seek interim reliefs to restrain neighbour from disturbing your right of way

You have to file suit for easementary rights for access to your land through the said pathway and for ingress and egress reliefs.

An easement is a privilege, without which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason where of the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.

A right of way is a right to pass over the soil of another person uninterruptedly. Rights of way do not fall under the denomination of natural rights. They are discontinuous easement, and may be acquired in the same way as the other easements are acquired.

The following six characteristics are essential for an easement-

(a) There must be a dominant and survient tenement

(b) An easement must accommodate the dominant tenement

(c) The rights of easement must be possessed for the beneficial enjoyment of the dominant tenement.

(d) Dominant and servient owners must be different persons.

(e) The right should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, the servient tenement; and

(f) The something must be of a certain or well defined character and be capable of forming the subject matter of a grant.

It forms a part of right of way is an affirmative easement – It entitles the owner of a right to do a certain act and to continue to do it, namely pass over the land of the servient owner. From this point of view it is called a positive easement. But a right of way also prevents the servient owner from building of his land, or doing any other act in the enjoyment of his proprietary rights on the land, which would interfere with the right of way. In fact, every right of easement imposes on the servient owner a restrictive use and enjoyment of his own land by him so that it may not interfere with the enjoyment of the right of easement by the dominant owner. Easements are classified into positive or negative according to the predominating factor of the particular exercised.

The order of the lower court seems to be correct according to the law of the land. You have two remedies-either to move the High Court against the order of the lower court, or file a fresh suit for restoration of path. The second recourse is advisable. The courts have to decide dispassionately according to the law and not on the basis of emotions.

You can claim easement through prescription as you had been using the path continuously for 35-40 years.

For filing suit for easementary rights, you o not have to approach high court or sessions court, you should approach the same court where the previous cases were tried.

You can file easementary suit along with application for the relief of interim injunction in the trial court itself. For more details you can consult your own lawyer, or if you have not engaged one, you may atleast take guidance from a local lawyer for knowing about the filing procedures in this regard.

1) you cannot move HC directly . If at all you file an appeal against impugned order passed by trial court yiu will have to do so at the district court

2) file suit for claiming easmentary right as advised earlier

Session court has no authority of law to set aside an interim order passed by the lower court. So you have to move the High Court if you do not wish to file a fresh suit.

The question of easementary right has now faded into oblivion as the earlier suit has been disposed as withdrawn. The only remedy now is to file a fresh suit for restoration of the demolished path.

You have to file a fresh suit claiming easement rights as well as restoration of the demolished pathway.

In the same suit you can file an IA seeking interim injunction restraining the opponents from obstructing your access through the said existing path way and also from further damaging the demolished pathway making it totally inaccessible for your ingress and egress.

1) yiu can claim easmentary right of necessity as the pathway is only approach rad tibyoyrvlsnd

2) yiu can also claim easmentary right of prescription as you had uninterrupted use of pathway for over 20 years

3) yiu can rely upon statements of local villagers to prove that pathway was enjoyed by you for over 20 years

1) you can claim easementary right of necessity a there is no other access to your house

2) even if plaintiff has dismantled the path way still you can claim .

3) you may not be able to prove easementary right of prescription although pathway was enjoyed by you for over 30 years.

4)you can search in kaanoon. com website for lawyers in haryana

1) You can claim both easmentary rights

2) since there is no other oath to your house you are entitled to easmentary right of necessity

3) seek an injunction restraining your neighbour from disturbing your right of way to your property pending hearing and final disposal of your suit

I approach to many lawyer in my local area but everyone responding fade chances of winning as plaintiff successful to diamantle the path through his land and court commissioner came late to ground till then he had dismantle the path.

The local lawyers may have been influenced by the opposite parties hence no one is giving a favorable reply to you. However that is not the end of it, do not be disappointed by this. There is no dearth for lawyer, if you dont find a better lawyer to take up your case properly n the local you may engage a good lawyer form the neighboring town also. In my opinion the advocate commissioner appointed by the court too might have colluded with the opponent party, hence in a fresh suit, you may seek the permission of court to appoint a fresh advocate commissioner to inspect the suit property and render his report. This time you make sure that you do not miss th opportunity like previous time.

Can I claim both easement by prescription and Easement of necessity both simultaneously as I entitle for the both becoz I was using the path since long 35-40 and no alternative path is available to access my home and Land

Since you claim that you are entitled to both you may seek both the reliefs if advised by your lawyer.

It is pertinent to mention here that No formal mention of path is found in revenue record as path. So If could not be able to prove that I am using this path for long 20 year an more Then easement of necessity will be effective or not?

It is not necessary that there has to be a mention about the path way in the revenue records to prove your right to easement or ingress and egress or pathway. The documentary evidences in your possession as well as other evidences shall be enough to prove your claim or rights, and this easement will be out of necessity.

It remarkable that house land is mentioned as gair mumkin house since 23 years. Keeping in mind all these fact how can I follow which approperiate recourse ?

This is a strong evidence in your side, you can very well take appropriate action as envisaged in law.

1) file fresh suit claiming easmentary right of necessity as there is no alternative pathway

2) in said suit give complete history of your case as you had enjoyed path way for many years how it was dismantled by your neighbour etc

1.I should approach to session court in appeal against lower court order against 144 CPC claiming easementary right and restoration of dismantled path which had been snatched by the opponent by dismantling the path or?

You can file a fresh suit claiming easement rights since your path way has been blocked by the opponent illegally by dismantling the same. You may file the suit in the lower court itself.

2. I should have to file fresh suit for claiming easementary right and restoration of path and immediate relief .pl guide me in detail becoz no local advocate is providing me appropriate legal recourse.

As advised above, since you dont have way for ingress and egress to your property, i.e., way to your property, you are left with no alternative than to file a fresh suit for easement rights and path way for access to your property. The fresh suit should contain a narrative description of earlier suits and the reliefs the courts provided despite which you are not finding a proper relief to your problem.

Your case is very complicated and unless the pleadings are read threadbare no lawyer can advise you further cause of action. If your only grievance is that you want the path to be restored then a suit for mandatory injunction is required to be filed. Alternatively, you can move the High Court against the order of the District Judge.

1)we have advised you at length . you must have raised innumerable queries on this issue

2) it is better you move court claiming easmentary right of necessity as there is no other access to your house .

3) copy of paa 14 of order passed by Additional district judge clearly mentions prima-facie there are reasons to believe that although

plaintiff Mulkh Raj has been recorded as owner in possession of suit land

in the revenue record and in the said record there is no formal mention of

existence of passage in dispute leading to the house of defendants

Lakhwinder Kaur and Mohinder Singh, but there are also reasons to

believe that house of defendants is situated adjoining the suit land and

plaintiff permitted construction of said house of defendants by facilitating

them use of passage from his suit land for a long time. It also appears

that there is no other passage for ingress and egress to their house by

defendants. It also appears that plaintiff after passage of an order by

Appellate Court, staying operation of impugned order, immediately

resorted to dismantle the passage by ploughing it and making it full of

water, leaving defendants to confine to their house.

In the given situation you may approach the same trial court for the relief of easement rights on the basis of high court order.

You should not approach high court for this relief.

The evidences in your possession will be sufficient to prove your case and cause.

No appeal lies to Session Court against the order of dismissal of the application by the trial court, which leaves you with only one remedy i.e to approach the High Court under its extra ordinary constitutional jurisdiction.

There is no compensatory ground for this. You have to enforce your rights for easement on the path way in the land or property belonging to others on the basis of easementary laws.

So do not take a risk of filing some other relief because it may be rejected. Yo may have to go on the route which is legally enforceable.

1) you have to claim easmentary right of necessity a there is no other pathway access to your house

2) court would grant you interim reliefs as your access to your house is blocked by your neighbour

Right of way can be claimed on the basis of easement alone and not as a compensation. That a remedy before the court would take long to culminate is no ground to seek a prayer which is per se illegal.

You don't have to compensate neighbour with equal land or money for obtaining easmentary right of way

In a suit for declaration of easementary right the court would not quantify the compensation, if any, to be paid to the owner. To claim compensation the owner will have to file a separate suit.

As per Indian Easements Act, 1882, section 13:. Easements of necessity and quasi easements;

(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement;

The easements mentioned in this section, clauses (a),Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.

The following illustrations shall make your position more clear:

Illustrations

(a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A’s adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A’s adjoining land to the field sold.

(b) A, the owner of two field, sells one to B, and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B. A is entitled to a right to way, for agricultural purposes only, over B’s field to the field retained.

Easement by prescription could have been set up by you but this plea may not be tenable now in view of the fact that prescription is discontinued and there is an adverse finding from the lower court.

Show the case documents to a lawyer is what I will suggest again.

1) you will have to move civil court in this regard .seeking to pass a decree by declaring the plaintiff's easementary right over the suit property/cart track by necessity and prescription, to grant consequential permanent injunction against the defendants from disturbing the plaintiff's peaceful enjoyment and use of the suit cart track and to direct the defendants to demolish and remove the obstructions in the cart track . in the plaint plan within the time stipulated by the court.

2) under section 35 of easement act injunction can be granted restraining disturbance of the easement

You were advised to file a suit claiming easement rights.

Also advised about the easement by necessity with illustrations.

Now it is you decide about filing a fresh suit or still prolong the issue by asking various doubts on the subject without initiating any legal process.

1) if decree has been passed 24 years back and not executed claim would be barred by limitation

2) you should only claim easmentary right of necessity as suggested earlier

You should file your case and concentrate only on your issue. It is for the defendant to claim as per his version and his convenience. When he is challenging your claim for easement right invoking the exchange decreed by an an order of court, you can bring this fraud to the notice of the court saying that whatever he has done is out of mischief and fraud played upon your grandfather, however this will not restrict him from rights for easement to access your property through the only available pathway. You may take up your case accordingly.

If the exchange decree has not been honoured by this man then the legal heirs of your grandfather can file a suit for eviction against that man. In so far as the blockage of your path is concerned you can claim easement. Separate suits will have to be filed.

The other two brothers can execute a power of attorney in favor of the brother who has been authorised to conduct the civil suit, the POA can file an additional petition under Order III rule 2 seeking to appear as power of attorney agent for he other plaintiffs too.

you can give POA to your third brother to file suit on your behalf

Then the two of you have to execute a GPA in favour of your third brother to authorize him to file the case on your behalf. The GPA would have to be registered. Fax will not do.

1) court must have granted you interim order permitting you to access your house from the path way . if court has not granted your lawyer should request court to grant you interim reliefs as there is no other access to your house

2) court can appoint any advocate to act as court commissioner

You have to file a petition under Order XXVI Rule 9 and section 151 of CPC requesting court to appoint an advocate commissioner to inspect the property, find out the physical features of the suit property and also your path way to access your property i.e., the ingress and egress facility to you and your easement rights over the petition mentioned property and to submit a report about it. Court will not automatically appoint a commissioner.

For interim relief, you should request the court to pas an order favoring you in the application filed before it if the defendant/respondent is not filing his counter to it in the next date of hearing.

There is nothing to advise except that you should prosecute your case in the court on merits and emphasize on getting the interim relief. If interim relief is denied then you can move the HC. More often than not an advocate is appointed as the court commissioner, albeit the commission may be directed to even a revenue officer.

1) have papers produced in court and seek urgent interim teliefs . Rely upon photographs of neighbour blocking your access and not permitting you to access your house

2) request court to appoint advocate commissioner and to direct commissioner to submit report within period of4 weeks

1. I have filed a suit for easementary right claim right of way by the way of prescription n by necessity along with application for permanent injunction under section 39 rule 1, 2. What relief court can grant at this stage ?

When you have filed the petition along with the plaint, why did you not argue and get an exparte order on your petition filed under order XXXIX Rule 1 and 2?, Was there any caveat pending in the court filed by the opposite party? Well, you can talk about this in the next date of hearing only because even if you file an application for advance hearing, this application also will go a round and by then your main petition itself will be taken for hearing. So better wait until then.

3. Can court grant interim order/injunction to restrain them from damaging path?

It depends on how you present your case and put forth your arguments with the help of the documentary evidences for your usage all along and the damages he has caused which obstructs and affects your daily life and the very survival is becoming difficult.

4. I wanna appoint advocate court commissioner rather then any revenue officer becoz revenue department is generally corrupt they form wrong report. Can court allow me and under which section it is possible?

Yes you can seek for inspection through court commissioner, i.e., you can file a petition and affidavit under Order XXVI Rule 9 seeking to appoint an advocate commissioner for the purpose, but that will be at a later stage only and not so soon.

1. Without the reply of defendants the courts are reluctant to grant interim relief. Be that as it may, you can move the HC against the refusal of trial court to grant interim relief. At this stage the court can order status quo and nothing more.

2. You can argue in the court that an advocate be appointed in place of a revenue officer. Advocates give a fair assessment in their report,

1) court will wait for report of advocate commissioner and then only pass orders

2) when court was passing orders at that time you should have sought report within period of 15 days or so

3) at that time yuur advocate did not make any such submission

4) now you have to wait for report to be submitted

1) court has powers to grant interim reliefs but in your case courts is awaiting report of commissioner

2)your claim for easementary right of necessity is maintainable as there is no other access to your land

3) you can claim easemenraty right of prescription as you have right of way for over 20 years

1. The court can at this stage order status quo only. It cannot grant a positive injunction.

2. It is for the court to decide on the basis of pleadings whether easement of necessity is made out or not.

1.So now my case is in initial stage. Can court is competent to grant me interim /urgent relief ?

You can seek interim relief by filing an application in IA, the court, on the merits of the grounds advanced, may grant interim relief.

2. And my Claim on the basis of easement of necessity is sustainable?

An easement by necessity allows an owner of a landlocked parcel to cross over another's land to access a public road. Easements by necessity are known as appurtenant. This means that they benefit a particular piece of land, rather than an individual person. Because they benefit the land, they run with the land. Your case is a fittest case to quote the provisions of easement of necessity.

3. Also I claim esement by prescription tell me about that also.

An easement by prescription is one that is gained under principles of a legal concept known as "adverse possession", under which someone other than the original property owner gains use or ownership rights to certain property. Prescriptive easements often arise on rural land when landowners fail to realize part of their land is being used, perhaps by an adjoining neighbor. Fences built in incorrect locations often result in the creation of prescriptive easements. If a person uses another's land for more than the statute of limitations period prescribed by state laws on adverse possession, that person may be able to derive an easement by prescription. Under adverse possession laws, the use of the land must be open, notorious, hostile, and continuous for a specified number of years as required by law in each state. In your cae all the above ingredients are evidently available.

What are the points to prove before the court to claim right of way by easement of necessity ?

An easement by necessity can only be created when land held by a single owner is divided into two or more parcels. If any of the newly created parcels is physically unable to reach a public road, an easement by necessity may be created. Easements by necessity are either:

An easement by necessity will not be granted for convenience purposes. Some real necessity must exist. Strict necessity requires a totally land locked parcel. Bordering a public road, even on a steep cliff or along a river, would prevent a parcel of land from being granted an easement by necessity under strict necessity.

1)for easmentary right of necessity it has to be proved that you dont have any other access to your land

2)Section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours

You have to prove that there is no alternate path to access your land and that you had been using the pathway continuously till the day that it was dismantled or you were disallowed to use it further.

1) you must never suppress any material facts from court

2) person who does not come to court with lean hands is not entitled to any reliefs

3) it will not harm your case

If you propose to take any action on the ineffectiveness of the DC concerned over the past activity is just waste of time, energy and money.

However, The inaction by the DC and his direction to approach civil court for relief and remedy may be made in the pleadings of the present suit and the instructions or orders passed by DC may be used as evidence in the present suit indicating your efforts made to various authorities to get relief but due to not getting justice anywhere, you were pushed to approach competent court of aw seeking relief and remedy for the entire prevaiing burning issues.

The DC had no authority of law to stop him from dismantling the path when he was in settled possession. It is purely within the domain of the civil court to restrain such an act through injunction. That you had approached DC earlier, who had no authority to intervene in the matter, does not operate to bar the adoption of remedy before the civil court.

Both are inconsistent to each other but this does not stop the court from passing a declaratory decree on the basis of either of two.

(1992 (2) KLT 775) Ibrahimkutty v. Abdul Rahumankunju is held as follows:

"Ordinarily a court can find a case and decree the suit only on the basis of the pleadings of the parties. In case, where the claim is for an casement right, it is all the more necessary that the pleadings should he specific and precise. There is reason therefor. `Easement' is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings should he precise. On a careful reading of the plaint in the case, it should be stated that the plaintiffs did not specifically plead the nature of the easement claimed by them

Indeed, the issue framed in the case is also of a general and vague nature. That is why the trial court found in favour of casement of necessity and also by prescription. The lower Appellate Court found customary casement and casement by prescription. The qualitative and quantitative requirement for the different kinds of casements arc to a great extent mutually exclusive. That is the reason why the courts have always insisted that whenever a right of easement is claimed, the pleadings should be precise and clear and not vague. (para.9)"

2) if you have no other right of access court would grant you easment right of necessity

This question should have been made before filing the suit, now since you have already filed one, wait for the objections either from the opposite part or by the court itself while framing the issues.

if the court is making an objection to the issue raised/pointed out by you or even if the opposite party is making it as an issue of concern, you can file a petition under order VI Rule 17 to amend the plaint by which you can amend the plaint by deleting either of the relief if required to be deleted, otherwise allow the suit to gor for a round in the proceedings and wait for the results/judgment.

you would be entitled to easementary right of necessity as there is no other access to your land .

court would accept your one plea

I claimed both right of way simultaneously i.e by prescription and by necessity. As by court comments, that both right are not co- exist but in my case I am eligible for both as under:- 1. Prescription: I had used the pathway since 25-30 years. 2. By necessity : I am claim this right on the basis of that there is no other path to access and the servient tenements through which claiming and for which claiming is originally belongs to my grandfather. Now pl explain me when I am entitle for both claim the why I not claim both? Or which I claim ?

As per your contention you are entitled to both the reliefs is acceptable. But you may have to sort out that by which law the relief sought would be more useful and appropriate to you. Since you have filed the suit before court, it would be better to go by your case and can file a petition to amend the relief accordingly at a later stage as per the prevailing situation.

Kerala HC judgment has only a persuasive value on the courts which are not under the territorial jurisdiction of Kerala HC. Nothing stops you from claiming easement by prescription and also necessity. It is for the court to decide which of the two exists in your favour.

1) you can during arguments confine your submissions only to easementary right of necessity

2) you can mention that although you had claimed both easementary rights of necessity and prescription you are seeking only right of necessity

Do not feel hopeless. As I said, the courts which are not under subordinate to the Kerala HC are not bound by its judgment. The courts in Haryana are bound by the binding precedents of either Supreme Court of India or Punjab and Haryana High Court.

Since you have filed the suit claiming both the reliefs, it would be advisable to travel along with the case in your own way, it is for the opposite parties to object. Until the opposite parties raise objection on such technical grounds, you remain calm as if you are totally innocent of the provisions. You pretend as if you are fully following the procedures prescribed in law. Do not educate the opposite party of this lacuna by remaining suspicious about the conduct of the case, this will wake the sleeping opposite party on the exact provision and your entitlement, so they file a rejection of plaint application stating that your plaint seeking both reliefs is not maintainable. Wait for the case to be conducted in the manner you have decided and for the developments from other side on it, before that do not conclude or get confused about conclusion.

not aware of any such judgment . wherein both easement of necessity and prescription can be claimed simultaneously

2) Hon'ble Kerala High Court in the case of Maniyan Krishnan and another Vs. Maniyan Nanukuttan AIR 1986 Kerala 75, wherein it was laid down as under:-

" The easements mentioned in this section,clauses (a), (c) and (e) are called easements of necessity.

Easement of necessity arises on the severance of tenements. The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant. Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. As far as the Indian Law is concerned, the contours of this doctrine implied grant to create an easement of necessity are well delineated in the section itself. It has to be remembered that it is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Vide Aldridge V. Wright, (1929)2 KB 117 CA and Union Lighterage Co. V. London Graving Dock Co., (1902) 2 Ch 557. It has to be remembered that an easement of necessity arises where normally both the dominant and servient tenements have been in common ownership so that the creation of an easement by implication of law may be said to be the outcome of the former jointness of the two tenements. The disposition which causes a cessation of the common ownership that gives rise to the creation of an easement, may be of either tenement, or a simultaneous disposition of both tenements."

Hon'ble Allahabad High Court in the case of Digambar Singh Vs. Birendra Singh AIR 1930 Allahabad 313 has been pleased to hold that if prior to partition the land is irrigated then the party gets a right of easement and can even seek injunction against the party through whose land the flow of water is there.

Hon'ble Karnataka High Court in the case of Baburao Yashvantrao Jadhav Vs. Shamrao Khandi Jadhav AIR 1992 Karnataka 181, has laid down that, if a party has no other passage to approach his land, then the party can claim easement of necessity.

A gist of supreme court on easement of necessity in Bachhaj Nahar vs Nilima Mandal & Ors on 23 September, 2008 given below:

Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence.

I have no time to find judgments for you. Your lawyer would find one, if required.

1) you will succeed in your claim for easmentary right of necessity as there is no other access to your land

2) court can grant you easementary right of necessity if yiu are able to prove there is no other access to your land

Easement by necessity can be declared even if the court comes to a conclusion that there is no prescription. Unless you prove absence of alternate path to access your property there cannot be a decree on the basis of easement by necessity.

Since this is the only available access to reach your property, it becomes easement by necessity.

Even if the court disallows the easement by prescription, the alternate prayer for easement by necessity will hold ground. You may wait for the developments that takes place in the suit during trial. and can decide further course of action then.

1) you should object to adjournment being granted. insist on payment of costs by defendant

2) court generally grants at most 3 adjournments to defendant to file its reply

Once a suit is filed, the court will send summons and notices to the defendants/respondents. On receipt of summons/notices, it becomes the duty of the defendant/respondent to file the written statement/counter to the plaint/petition immediately. Failing which the court will allow time upto ninety days and another adjournment at the request of the defendant/respondent counsel explaining their circumstances to unable to file the same, as a last chance.

The petitioner/plaintiff or his/her counsel should put pressure before the court for the inordinate delay in filing the written statement/counter and can express dissatisfaction in the open court about the conduct of the opposite party. The court will certainly instruct the opposite to file the same without fail in the next date of hearing and post the case for the same as last chance. If the plaintiff simply nods the head in the open court during the date of hearing for an adjournment adjudication by court on the date of hearing, no respite can be had.

Not necessary to file declaratory suit. You have been enjoying easementany right for 40 years this fact itself proves your right. Court is delaying in pronouncement of judgment. If there is no suit , filed or pending towards objection on your right and you have pleaded that such right being in existence for 40 years court should give interim relief in your favour . You should file writ of Certiorari before the High court and seek interim relief. If defendant obstructs you within 2 years toabstain you from enjoyment of any right , this act of defendant shall be read in your favour (sec 114 evidence act)

1) you can request court to grant you ad interim reliefs as there is no other access to your house

2) object to any adjournments being granted

There is no limit to the number of opportunities which the court can give. Failure to file the reply after sufficient opportunity can result in the right being forfeited by the order of court, an order that can be challenged up to the Supreme Court.

Why should the court readily grant you the relief that you have prayed for, without affording an opportunity to your opponent to show cause against the grant of prayed relief? The right of being heard in defence is the bedrock of a fair judicial system. You do not get favourable orders from the courts at the throw of a hat.

If you feel that the inordinate delay will be denying you the relief as well as justice, you may approach high court with a writ petition to invoke article 226 of Indian constitution for seeking relief.

You may file a writ petition under the advice of a senior counsel of high court.

Karnataka High Court

Puttegowda @ Ajjegowda vs Ramegowda on 22 June, 1995

Equivalent citations: ILR 1996 KAR 465, 1996 (5) KarLJ 306

Author: H N Tilhari

Bench: H N Tilhari

JUDGMENT Hari Nath Tilhari, J.

1. This is the defendant's Second Appeal under Section 100 of the Civil Procedure Code from the Judgment and decree dated 29.1.1985, delivered by Civil Judge, Chikmagalur, in Regular Appeal No. 28/1981, out of the Judgment and decree dated 31.3.1981, in O.S.No. 341/1978, by the Court of Munsiff, Chikmagalur.

2. The facts of the case in brief are that the plaintiff-respondent claims to be the owner of the land shown in the Schedule-A to the plaint. According to the plaintiff's case, the entire area of the survey number concerned was 4 acres 29 guntas. Out of that area, an area of 2 acres 14 1/2 guntas belonged to the defendant - appellant and the remaining half of that land measuring 2 acres 14 1/2 belonged to the plaintiff, who had purchased it from the previous owner. According to the plaintiff's case, the original owner of the land was one Beeramma and that Beeramma transferred this land in two parts of 2 acres 14 1/2 guntas to two persons, namely, Patel Puttegowda, from whom the plaintiff claims to have purchased first half of the land measuring 2 acres 14 1/2 guntas, while, the other half measuring 2 acres 14 1/2 guntas was transferred by Beeramma sometimes in 1948, to the defendant - appellant. The Schedule-B land according to the plaintiff's case belongs to the defendant. The plaintiff's case is that in Plaint Schedule-A property, there is no approach from outside, except by passing over or by passing through the land of Schedule-B which belongs to the defendant. The plaintiff claimed that the plaintiff has got a right of easement of necessity of passage over the land which is mentioned in Schedule-B. Plaintiff has further alleged that apart from claiming easement of necessity to the passage, the passage has been utilised and used as such for long by the plaintiff, and that the plaintiff has also acquired the said passage by way of an easement by prescription and that the width of the path, that is, the passage is about 10 feet. That the defendant is determined and insistent to create obstruction in the use of the passage which is in the land as mentioned in Schedule-B, so, the need for filing the suit for injunction arose and the plaintiff did file this suit for perpetual injunction restraining the defendant from interfering with the plaintiff's alleged peaceful use and enjoyment of the passage over Schedule-B land as shown in the sketch to Schedule-B to the plaint.

3. The defendant-appellant filed the written statement and admitted himself to be the owner of 2 acres and 14 1/2 guntas of land out of survey No. 82/2, but, he denied the correctness of the boundaries given in the plaint. Defendant no doubt, admitted that the portion which plaintiff claims to be his own (plaintiff) belong to Beeramma, the original owner of the entire plot and from Beeramma the same portion was purchased by Patel Puttegowda. The defendant has disclosed that the other portion which has been shown as Schedule-B land to the plaint was purchased by him as per registered Sale Deed dated 20th April, 1948. The defendant denied that plaintiff has got any right of passage or path by way of easement of necessity over the land belonging to defendant, namely, plaint Schedule-B properly. The defendant further denied the plaintiff's case to the effect that the plaintiff has acquired right of easement by prescription. According to the defendant's case, plaintiff has not used the alleged passage over plaint Schedule-B property at the time of purchase, nor is there any right in existence on that land. The defendant's further case is that plaintiff and other persons made use of the ridges attached to the fields for the purpose of going to their fields which is called 'Badu', as there is no road or pathway passing through the defendant's field. That as such, plaintiff is not entitled to relief for injunction and further asserted that the suit for bare injunction without seeking the decree for declaration is not maintainable. That the defendant denied that Schedule-B land had remained uncultivated from 1948 instead, asserted that the said field had been cultivated every year and during every crop period.

4. The learned Trial Court, on the basis of the pleadings of the parties, framed the following issues:

1. Whether the suit for injunction without the relief of declaration of right of easement is not maintainable?

2. Whether the plaintiff proves that he has a right of easement as pleaded by him?

3. Whether the plaintiff is entitled to an order of permanent injunction as prayed for?

4. What decree or order?

5. The learned Trial Court after considering the material on record held (a) that the suit for a bare decree of injunction, without claiming relief of declaration in a formal way was maintainable. The Trial Court further held that the plaintiff has got the right of easement as pleaded and that he is entitled to get the decree for injunction to the effect that plaintiff and his men have got a right to move on two feet wide pathway, that is, the passage running through the plaint Schedule-B land to plaintiff's Schedule-A land and that defendant is liable to be restrained by decree for permanent injunction from interfering with use of the path or passage in dispute on suit land i.e. in Schedule-B land leading to plaintiffs land in Schedule-A and for use and enjoyment of his land i.e. land as in Schedule-A to plaint.

6. Feeling aggrieved from the Judgment and decree of the trial Court, the plaintiff himself filed the Regular First Appeal challenging the Trial Court's decree. The Lower Appellate Court by its Judgment and decree dated 29.1.1985, partly allowed the appeal and modified the judgment and decree of the Trial Court and ordered that the plaintiff and his men may have the right of way as passage vide 5 feet wide pathway in the plaint Schedule-B land from Mathigatta Chickamagalur P.W.D. Road, in order to facilitate them to go to their fields or land in plaint Schedule- A property. Rest of the Trial Court's decree has been maintained and affirmed by the Lower Appellate Court.

Feeling aggrieved from the Lower Appellate decree, the defendant has come up in Second Appeal. I have heard Sri M. Rama Bhat, Counsel for the appellant and Sri S.N. Keshavamurthy, Counsel for the respondent at length.

7. The Appeal has been argued from both the sides strenuously and I have been taken through them to the entire record. It has been contended on behalf of the appellant by Sri Rama Bhat that the plaintiff's suit itself was not maintainable in its present form as plaintiff had not claimed any decree for declaration of his rights or interest. In other words unless and until the plaintiff makes a formal claim for relief of decree for declaration of his rights, he is not entitled to maintain the suit for injunction and as such, the learned Counsel for the appellant submitted that the decrees passed by the two Courts below have been without jurisdiction and suffer from error of jurisdiction. In support of his contention, Sri Rama Bhat placed reliance on a Single Judge Decision of this Court in the case of RAMANATH GUPTA D. v. S. RAZACK, 1982(1) KLJ 394. Sri Bhat further contended that no case for easement either by prescription or of necessity had been made and the learned Lower Appellate Court committed error of law in holding that plaintiff-respondent is entitled to be declared to have a easementary right over 5 feet wide land as a passage for plaintiff's field upto the P.W.D. Road running on the land of defendant-appellant. Thereby, the learned Counsel submitted that granting of 5 feet wide land as passage as pathway is without any material on record establishing easementary right either by prescription or otherwise. In the alternative, he submitted that really, plaintiff has failed to make out a case of easementary right in his favour nor has he been able to prove it in the light of provisions of either Section 13 or Section 15 of the Indian Easements Act. The learned Counsel for the appellant Sri Bhat elaborating his contention, submitted that the plaintiff purchased the plaint Schedule-A land, but it was purchased in the year 1970 vide registered Sale Deed dated 27.2.1970 and so, from the date of purchase till the date of filing of the suit, plaintiff has not been able to prove his user of land by way of right of easement for 20 years. The learned Counsel pointed out that the suit had been filed in 1978, as appears from the record and he further submitted that no case of easement has been made out by the plaintiff-respondent in the context of Section 13 of the Easements Act.

8. On behalf of the respondent, Sri Keshava Murthy, learned Counsel submitted that the contention of the Counsel for the defendant-appellant to the effect that the plaintiff's suit has not been maintainable is not correct. Sri Keshava Murthy further submitted that in a suit for injunction, no doubt plaintiff has to allege and assert his right which the plaintiff claims to have been violated or which the plaintiff apprehends likely to be violated by the defendant and that has been done by the plaintiff in the present case, by making necessary assertions in the plaint and it has not been necessary to claim formal relief of declaration of that right, but, that right has to be established by evidence under law and this has been done in this case. So, suit as framed has rightly been held to be maintainable. The learned Counsel for the plaintiff-respondent further submitted that a perusal of the various provisions of the Specific Relief Act beginning from Sections 34 to 41, reveals this position. He submitted that these provisions have not been taken note of by the learned Single Judge in his Decision on which the learned Counsel for the appellant has placed reliance. Sri Keshava Murthy submitted that in view of the Doctrine of per incuriam and sub-silentio as such, this case may not be taken to be a binding precedent and this Court can interpret the provision of law taking into consideration the relevant provisions. If the Court thinks necessary, to refer it to the large Bench, it may do so and it does not appear to be necessary in view of the above mentioned Sections, as Sri Keshava Murthy submitted. Dealing with the other aspect of the matter, Sri Keshava Murthy submitted that the finding that the plaintiff has got a right of easement to way or passage is a finding of fact is not assailable at the stage of Second Appeal being concurrent finding and as such, it should not be interfered with. The learned Counsel for the respondent further submitted that though the learned Appellate Court found that there was a need of way by easement of necessity, but, it further found that two feet wide passage provided by Trial Court would not be sufficient, the learned Lower Appellate Court considering the fact that 5 feet wide pathway or passage was necessary for the passage for two bullocks, modified the decree and in so modifying the decree, the learned Counsel for the appellant submitted that, the lower Appellate Court did not commit any error of law or jurisdiction. With reference to the appellant's Counsel's submissions as to easement of necessity under Section 13 of the Easement Act, learned Counsel for the plaintiff submitted that if technical views to be taken, the material ingredients might not have been made out, but plaintiff has alleged that he is claiming the right of easement by necessity, but, if certain particulars are required to be alleged in respect thereof, in controversy then, the case may be sent back for the purpose of trial afresh or finding may be called for from the Court below on the point of right of easement of way by necessity.

9. I have applied my mind to the contentions made by learned Counsel for the parties. That as regards the technical point raised by the Counsel for defendant-appellant to the effect that the plaintiff's suit for permanent injunction is not maintainable, in view of the fact that the plaintiff respondent has not formally claimed relief, namely, declaratory decree to the effect that plaintiff be declared to have acquired or to be possessed of easementary right of passage over the land in dispute, has got no substance for the reasons hereinafter.

10. Before I proceed further it will be profitable and beneficial to refer to certain provisions of the Specific Relief Act, 1963. Section 34 of the Specific Relief Act, reads as under:-

"34. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief;

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so.

EXPLANATION :- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."

A perusal of Section 34 will per se show that by way of Proviso thereto, the Legislature has provided a special provision to the effect that ,n a suit for declaration if the plaintiff has been able to seek further relief, but, he has not done so, the Court shall not grant declaratory decree or declaratory relief, that is, the Act specifically itself appears to give a negative direction to the effect that no declaration should be granted in those circumstances. Section 38, contained in Chapter VIII of Part III of the Act, deals with the grant of perpetual injunction. It reads as under:

"38(1). Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely:-

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."

Section 41 of the Specific Relief Act provides as to when injunction cannot be granted. It reads as under:-

"41. An injunction cannot be granted:-

(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought;

(c) to restrain any person from applying to any legislative body;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) to prevent the breach of a contract the performance of which would not be specifically enforced;

(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;

(g) to prevent a continuing breach in which the plaintiff has acquiesed;

(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court;

(j) when the plaintiff has no personal interest in the matter."

11. A bare perusal of the scheme of the Act, particularly of the provisions contained in Chapter VI and Chapter VII, per se reveal the cases where the relief for injunction or claim for injunction can be maintained and can be granted. It further reveals vide Section 41 of the Act, the circumstances when permanent injunction cannot be granted and be not granted. Legislature in the case of declaratory suits specifically provided that declaratory relief shall not be granted to the plaintiff, in case, the plaintiff has been able to claim and has been in a position to claim further relief in that suit, but, he has omitted to claim that. So, this indicates that where Legislature has specifically desired, a suit to be barred like that or desired that relief should not be granted it is specifically so provided, but, the Legislature did not enact any provision to the effect that a suit for injunction would not be maintainable or that decree for injunction will not be granted, where plaintiff has not formally claimed a decree for declaration of his right title interest in properly or the like. No doubt, plaintiff has to make in the plaint allegations what right, title or interest he claims in respect of a property and what rights of his he is apprehensive of being violated or interfered with by the defendant and no doubt, he has to establish those rights, interest and title and fulfill those conditions necessary for the grant of decree for injunction. But, that assertion of right, interest or title in the plaint is different from claiming a formal decree for declaration or a declaratory decree. Therefore, plaintiff has to assert or allege the specific right, title or interest with necessary particulars or ingredients thereof. He has to plead necessary ingredients on the basis of which the rights claimed or is asserted by the plaintiff in the plaint and has to establish that right which he apprehends to be or is likely to be violated, but the Section does not put that he must also claim a formal decree for declaration or if he fails to claim the formal decree for declaration, he shall not be granted the relief for injunction because of failure to claim a formal relief of declaratory decree as has been provided in Section 34 of the Specific Relief Act with respect to declaratory decrees. This difference of the language used in the provisions of Chapter-VI and Chapter-VII of the Specific Relief Act, clearly reveals the intention of the Legislature. Had the Legislature so intended that no suit for decree for injunction or possession should be entertainable unless plaintiff claims a formal decree for declaration of title the Legislature would have so provided. That being so, if I accept the contention of the learned Counsel for the appellant to the effect that suit for injunction will not be maintainable unless the plaintiff claims a formal relief of declaratory decree or that the plaintiff be granted a decree for declaration, and that the plaintiff's suit would be liable to be dismissed this Court will be transgressing from the field of interpretation into the field of legislation. The duty of the Court is to interpret the law, it is not the duty of the Court to enact law or provision not enacted in the Legislature or to add something not so provided and act as a Legislature. We have to interpret and enunciate the law as enshrined in the Act and the Courts have not to add nor subtract something which is against the intention. So, I find that the contention which has been raised by the Counsel for the appellant in this regard is without force. When I so opine, I find support from the Decision of the Allahabad High Court in PRABHU DAYAL v. GAON SAMAJ, TANDARPORT, 1965 ALJ 426, DHAVAN, J., observed as under:

"In my opinion, the view of the Courts below is erroneous. I think it was not necessary for the appellant to ask for a formal declaration of his title or for a declaration invalidating the order of the Sub-Divisional Officer. In a suit for injunction, the plaintiff's right to an injunction is based upon some titfe which he must establish to the satisfaction of the Court, it is not necessary for him to add a formal prayer for a declaration of his right, as a prayer for an injunction necessarily involves a declaration of title which is denied by the defendant in the suit. Sanyasi Ambalagarau v. Maganlal. The view of this Court appears to be similar. In Azmat Ullah Khan v. Shiam Lal, it was held that in a suit for perpetual injunction to restrain the defendant from interfering with the plaintiff's possession he must prove his title within twelve years of the date of suit. It follows that proof of title is necessary in a suit for injunction. The courts below erred in holding that a formal prayer for a declaration of title was necessary."

In the case of SMT. INDUMATIBEN CHIMANLAL DESAI v. UNION OF INDIA, , Hon'ble High Court of Bombay has been pleased to hold as under:

"Coming to the form of the suit, the suit is so framed as to be suit for an injunction. Under Section 34 of the Specific Relief Act of 1963, a person may file a suit for a declaration as to any legal character, or as to any right to any properly. This is a discretionary relief. Section 34 provides that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Section 37 pertains to injunctions. Sub-section (2) provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 prescribes when a perpetual injunction may be granted. The difference between Section 34 on the one hand and Sections 37 and 38 on the other hand is that the Court may not grant a declaration where the matter is capable of consequential relief. But there is no such restriction put on injunctions and the Court may grant an injunction as a substantive relief without any prayer for declaration, although in many cases a declaration may be implicit in the grant of a perpetual injunction."

In another case, R.F.A.629 of 1989, Dasappa v. Seetaram decided on 16.12.1994, this Court has taken the similar view in the context of suit for decree of possession in which formally no declaratory decree of title or right was claimed along with the decree for possession, claimed in the suit.

In the case of Corporation of the City of Bangalore v. M. Papaiah and Anr., , the Hon'ble Supreme Court has been pleased to lay down the law in this regard as per paras 2 and 4 of the Decision as under:

"2. The appellant denied the claim of the plaintiffs and asserted its continuous possession since 1927 and also pleaded that the suit was not maintainable as the relief claimed was limited to permanent injunction without asking for a decree to declare the plaintiffs title."

"4. So far the scope of the suit is concerned, a perusal of the plaint clearly indicates that the foundation of the claim of the plaintiffs is the title which they have pleaded in express terms in paragraph 2 of the plaint. It has been stated that after cancelling the acquisition of the suit property for a burial ground the land was transferred to Guttahalli Hanumaiah under G.O.No. 3540 dated 10.6.1929 on payment of upset price. In paragraphs 3 and 5 the plaintiffs have reiterated that the first plaintiff was the owner-in-possession, It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the appellant Corporation. The Court fee payable on the plaint has also to be assessed accordingly. It follows that the appellant's objection that the suit is not maintainable has to be rejected..........."

The case Ramanatha Gupta v. S. Razack, 1982(1) KLJ 394 relied by the appellant's Counsel comes within the exceptions to the Doctrine of Precedent, the exceptions which are created as they come under the Doctrine of per incuriam and sub-silentio for the reason that the material provisions of Specific Relief Act and the language used therein, namely, Sections 34, 37, 38, 40 and 41 had not been brought to the notice of the learned Single Judge, nor their effect been considered by the learned Single Judge, while observing that it is necessary in a suit for injunction based on prescriptive right that plaintiff should seek his declaration that he has acquired the rights.

12. Section 41 specifically says that an injunction cannot be granted when plaintiff has no personal right and if Legislature would have intended that injunction cannot be granted as that person has not claimed relief of decree for declaration then it would have so provided. So in this view of the matter, as the Decision in the case of Ramanatha Gupta, suffers from per incuriam and sub-silentio and it does not operate as binding precedent so as to necessitate reference of the point to a larger Bench.

13. It has been laid down by their Lordships in the Supreme Court in the case of A.R. ANTULAY v. R.S. NAYAK, as per Hon'ble Mukharji, Oza and Natarajan, JJ. that "Per incuriam are those decisions given in ignorance or forgetfulness of some statutory provisions or of some authority binding on the Court concerned so that in such cases some part of decision or some step in the reasoning on which decision is based is found on that account to be demonstratively wrong" (See para 42 of the Report).

In para 47, Their Lordships further laid it down "It is settled law that if a decision has been per incuriam the Court can ignore it."

That Hon'ble Mr. Justice Venkatachalaiah (as he then was) in the same A.R. Antulay's case as per para 138 thereof observes and lays it down as under:

"It has been asserted that the impugned directions issued by Five Judges Bench was per incuriam as it ignored the statute and earlier Chadha's case.

But the point is "that the circumstance that a decision is reached per incuriam merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent."

In the case of STATE OF UP. v. SYNTHETICS AND CHEMICALS LTD, ., it has been laid that there are two exceptions to the Doctrine of Precedent namely rule of 'Sub-Silentio' and Decision being per incuriam. If a decision falls within either of the two i.e. of sub-silentio or of per incuriam the decision loses its binding authority as a precedent or under Article 141 of the Constitution. (See paras 40 and 42).

14. Thus considered I am of the opinion that the position that emerges from the above is that the ruling relied by appellants Counsel namely Ramanatha Gupta v. S. Razack does not operate as binding precedent as it comes within clutches of exception created to the Doctrine of Precedent, by what is termed as per incuriam and in view of law laid down by Supreme Court in the case of Corporation of the City of Bangalore the suit for permanent injunction cannot be dismissed simply on the ground that relief for decree for declaration of title has not specifically been claimed or mentioned in plaint if the plaint shows that plaintiff's claim for injunction is based on his title or right asserted in the body of the plaint in otherwords plaint makes it clear that the suit has been filed for establishing title of plaintiff and on that basis is seeking the decree for permanent injunction against defendant - appellant.

That as regards the merits of the case, learned Counsel for the respondent plaintiff submitted that his client primarily claimed the right of pathway as easement of necessity as well as on the basis of easement by prescription and the Courts found that the plaintiff is entitled to the right of way or pathway. The learned Counsel for both the parties pointed to me out that the Trial Court had decreed the suit not on the basis of right of easement by prescription nor have recorded any finding that the plaintiff had acquired rights by way of easement of prescription by 20 years use, as there is no finding being recorded by the Trial Court or by the Appellate Court. The learned Counsel on both the sides fairly pointed out that the Courts have held that plaintiff has got and is entitled to right of way as easement of necessity observing that there is ho way for the plaintiff to go to his land, except by passing through the defendant-appellant's land and that Commissioner had shown that there is something as path beginning from the P.W.D. Road which is 6 feet wide and thereafter it had been reduced and it is 2 feet path and that for reaching to his field, plaintiff has got no other mode of access or passage or that if he is not allowed to have any passage, then he cannot reach his land. The learned Counsel for the plaintiff-respondent pointed out that Lower Appellate Court also considered this aspect and took the view that two bulls or two bullocks cannot pass through by 2 feet at one time side by side and further, the Appellate Court recorded the finding that the plaintiff has not given any evidence nor there is any evidence to show that the cart track of 10 ft. width had been in existence on plaint Schedule-B land and since plaintiff has been making use of it, it is better to modify the decree to increase the width from 2 feet wide way to 5 feet wide way and accordingly, Lower Appellate Court gave judgment and decree granting five feet wide passage and affirmed Trial Court's decree in other respects. As regards the easementary right, easement of necessity has been defined and is provided in Section 13 of Easement Act. Section 13 of the Easement Act, 1982, as under:

"13. Where one person transfers or bequeaths immovable property to another:-

(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or request, the transferee or legatee shall be entitled to such easement; or

(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed When the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or

(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or

(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;

where a partition is made of the joint property of several persons,-

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or

(f) If such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied be entitled to such easement The easements mentioned in this section, Clauses (a), (c) and (e) are called easements of necessity.

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee."

15. A perusal of Section 13 of the Easement Act, per se reveals that right of easement of necessity has been confined to cases of transfer and bequest of immoveable property by one person to another or to cases where property is jointly owned and there is a partition made thereafter. Section 13, no doubt, provides that where property passes by operation of law also from one person to another, then that passing of immoveable property shall be deemed to be a transfer from one to the other and the parties may be addressed as transferor and as transferee. This right of easement of necessity is to be granted in the interest of the parties or in favour of the transferee or legatee over the other property of the transferor or the testator or the like. It does not indicate as it covers any other cases beyond doubt. Easement of prescription is defined in Section 15 which reads as under:

"15. Where the access and use of light or air for any building have been peaceably enjoyed therewith, as an easement, without interruption and for twenty years;

and where support from one person's land, or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years;

and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years;

the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested."

16. In such cases, particularly, in a case as the present one, where, the plaintiff has claimed easement of necessity without pleading the necessary ingredients of easement of necessity as well as without stating particulars of the right of easement by prescription. It was the duty of the Trial Court as well as the Appellate Court to examine the plaintiff, where, necessary allegations have been made without indicating the necessary ingredients on the basis of which the right of easement by necessity or easement by prescription is claimed and the allegations are not clear or lack in particulars and to have recorded the statement by way of explanation and clarification under Order X of the Code of Civil Procedure or if plaintiff would have desired to amend the plaint, the plaintiff could have been provided an opportunity to assert and allege necessary facts indicating necessary ingredients before recording the evidence of the parties. I feel sorry to mention that neither Trial Court nor Appellate Court have applied their minds to this aspect of the matter. That as in this case, in my opinion, it would be just and proper that the decree passed by the Courts below be set aside and the case be remanded for trial afresh according to law after framing the necessary issues which may be framed after allowing the plaintiff opportunity to provide necessary particulars and amend the plaint keeping in view the provisions of Sections 13 and 15 of Specific Relief Act as well as after giving an opportunity to defendant-appellant to file additional written statement if any. The specific issues need to be framed as to the effect: Whether the plaintiff has acquired the right of way or path by easement of necessity under Section 13 of the Indian Easements Act, 1882, over the land of defendant's as per plaint schedule-B? Another issue could be; Whether the plaintiff had acquired easementary right of passage by prescription under Section 15 of the Indian Easements Act, 1882, if so, its effect? Though, personally, I am against remand, because, it delays the whole matter and there is only a second exercise, but in the circumstances indicated above this is a case in the interest of Justice and for proper decision of case it appears to be necessary and unavoidable.

17. Thus considered, I allow the Second Appeal, set aside the Judgment and decree passed by the Courts below and the case is being remanded for trial afresh after framing the issues in the light of the observations made in the Judgment of mine on the questions pointed out by me. Parties to bear their own costs.

18. It is clarified that when the plaintiff makes the applications for amendments and is allowed to amend the plaint, the defendant may be given opportunity to file additional written statement as well, the parties may be allowed to file additional evidence as well which may be considered along with evidence already on record, while deciding the suit keeping in view the observations as made above.

1) make application to court for urgent relief

2) oppose application for adjournment by defendant

Hi sir, pl refer my previous post .pl send me a copy of judgment of any court or preferably punjan and haryana court in which court had decreed the suit for easement right of way by prescription and necessity in the favor of plaintiff.

For a favorable judgment suiting to your cas, you may have to search it yourself. The citations are not provided here. You can visit the bar association library near your vicinity and find out the citations in this regard with the help of the librarian or any senior counsel.

1) settle issue amicably and pay them some money

2) we have guided you at length regarding easmentary right of necessity and perscription

3) police have already filed FIR against accused and they have been granted AB . If no settlement arrived st continue the criminal case

1. Sir now guide me that if they opposite party ready to sort out the path issue in return of equal land or money and what should I do ?

You have to decide about the relief you require. Will the compensatory money in lieu of the land for passage sort out your problem to have an access to your property? I dont think that taking money in lieu will solve your problem, instead you take it in writing to get you allotted with the usage of pathway as an easement for you to access your property from road.

2. Is this compermise can affect my easementary suit if I ready to resovlve the matter by paying against their land or giving equal land to them?

This may have an impact on the pending suit, you may have to initiate compromise proceedings in that accordingly if the issue is sorted out here itself otherwise it may be treated as suppression.

3. The police has not applied the relevant section for molestation of my brother's wife during attack. Pl guide me completely for easementary as well as criminal case against the opposite party in detail .

The criminal activity against your relative by them is unwarranted and atrocious which is not pardonable. However owing to the situations you may decide about compromise provided those people agree to your demands combining the reliefs you have sought in the pending suit.

Any compromise arrived between you both should be recorded and notarised so that he may have fear to violate the agreed conditions and simultaneously he should be dragged to the registrar's office to execute a deed facilitating the usage of pathway by you absolutely without any interference or obstruction in future by him or his legal heirs or his men and agents etc.

The deed can be drafted by a local document writer but the words suiting you should be originated from your side.

1. Well if the solution suggested by the opposite party is acceptable to you then draw a compromise deed to withdraw the cases and counter cases. The ball is entirely in your court. Unless you state in the compromise deed that you will withdraw your suit, you can prosecute it in the civil court on merits.

2. The failure of police to apply the relevant section for molestation of your brother's wife can be remedied by arguing at the time of charge on the application of section. Wait till the chargesheet is filed.

1) opposite party is not selling land to you . even if land is mortgaged to bank they can give you right of way

2) file consent terms in court in the declaratory suit filed by you .

3) keep the bank informed about the litigation filed by you and consent terms filed in court

4) if you are exchanging land then you need bank consent

Since the property is under loan with the bank, it will not be advisable to purchase or go for exchange as the same is not practically feasible.

However you have an option to purchase that portion of land alone, provided the bank agrees to this proposal and you make the payment of the consideration amount to the bank directly, who inturn shall give NOC and release this portion of property for sale unto you by restructuring the loan.

You may work out the modalities for an amicable settlement or else cling to the legal cases till you get proper and desired relief.

A property that is under mortgage cannot be sold except with the prior permission of mortgagee. So the second option is impracticable, prima facie.

The court's order dismissing the the application as not maintainable is gross injustice. It is to be seen what your prayers were and what was the orders passed by court. If you have asked fr the relief under section 144 cpc, the court ought to have gone into the details of the usage and appreciate the evidences produced by you supporting your claim for the easement rights and restitution of the pathway. I the judgment appears to be lopsided or erroneous and against natural justice, you may prefer a revision against the decision of the trial court.

The question for pleading both the reliefs together has been asked umpteen number of times by you and you have been answered properly, you may revisit those answers.

For the present temporary relief also you may have to pressurise the court because the vacation is likely to be begin by the end of this month.

1) you can plead easmentary right of necessity if there is no other other access to your land

2) you can claim easmentary right of perscription if you have enjoyed right of way for number of years

3) you can plead both

4) It is better you concentrate on existing case rather than filing revision application in HC

1) it is necessary to peruse interim order

2) in the vent any appeal is filed you would be served with copy of the appeal

3) court does not grant exparte orders unless respondents are served

4) if you so desire file an caveat before superior court so that no orders are passed without hearing you

When the opponent come to know about the court order they may rush to superior court for vacating that order or making the lower court order un operational.Sir pl suggest me proper law remedy that they cannot take exparty order to vacate the order of trial court in detail.

If you apprehend a similar situation to the of the earlier one wherein they got exparte order against you, it will be better to organise with your advocate to file a caveat petition before the appellate court against the respondents mentioning this order passed by the lower court. The appellate court, in the event of a pending caveat petition before it, cannot pass an exparte order against you vacating the lower court order without serving notice or summons to you. You can put forth your objections and arguments before the appellate court after receiving notice or summons in that cmp pending before the appellate court.

1. I have stated earlier that you can plead both.

2. Since the court has not passed an order so far you can move the High Court for an appropriate relief.

File a caveat immediately

1) you have got an excellent order by trail court

2) no exparte orders would be passed in appeal as you have filed caveat .

3) obtain certified copy of order and call upon defendant to comply with said order

4( if they don't comply take contempt of court proceedings against defendant

1) send letter to defendant by regd post ad to comply with court order . Enclose copy of order passed by trial court

1. Can I receive police help and how ?2. Can he file appeal directly to high court/superior court to take ex party and making our order in operational?I fear of that. Pl guide me.

1) If he is not obeying the court order, and still upto his same mischiefs, you may file a contempt petition against him.

You can take the help of police only if you file an execution petition to execute the court orders. This is an injunction order in IA, hence not an executable order, so there is no chance for seeking police help.

2) If you apprehend that he may approach high court with an appeal for an exparte order, you can file a caveat petition before high court too against him this will prevent him from taking an exparte order

What is the procedure to call upon the defendant to comply with the order

The court in he orders granting injunction would have directed you to send notice to the respondent enclosing the injunction order, petition and the documents of the plaint. You verify the orders passed in IA granting injunction you will come to know about the next step to be taken in this.

Police can be given necessary directions by the court to execute the order. When one appeal is pending in the court another appeal cannot be filed to the second appellate court.

1) said land was sold 30 years back

2) there is no other access to your plot as on date .

3) for 30 years you enjoyed this right of passage .

4) as such you can claim easmentary right of necessity and perscription

The opposite party cannot claim a 30 year old story now which is actually redundant.

The fact is that for the past 30 years or so you have been using this passage alone and this fact has been established before court.

So any claim by opposite party will be nothing but misleading the court by deviating the subject claim.

Since you have filed the suit for easement rights by both prescription and necessity, and as your advocate who is dealing with the subject practically will be in a better position to assess the situation hence you may proceed as per his idea by sticking to one clima i.e.l, by necessity alone. This will be appropriate, however for the present let the suit go on with both the reliefs, after there is an objection, you may amend the suit.

The facts of your case cannot be understood by me as I have not perused the pleadings and related documents. Heed the advice of your lawyer,