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.