‘There was an alternative way to access the Dominant Heritage’: Apex Court rejects argument of easement of necessity, dismisses appeals pertaining to rights over road
Justices Pankaj Mithal & Prashant Kumar Mishra [10-04-2024]

Read Order:MANISHA MAHENDRA GALA & ORS v. SHALINI BHAGWAN AVATRAMANI & ORS [SC- CIVIL APPEAL NO. 9642 OF 2010]

Tulip Kanth 

New Delhi, April 15, 2024: The Supreme Court has dismissed appeals relating to easementary rights over a 20-feet-wide road after observing that the appellants had nowhere claimed that they or their predecessors-in-interest were enjoying easementary right of use of the said road for over 20 years.

The dispute in the two appeals was in connection with easementary rights over a 20ft. wide road situated over land presently owned by the respondents (Ramanis). In the Suit instituted by Joki Woler Ruzer, the descendants of the subsequent purchaser Mahendra Gala were added as plaintiff Nos.2-4 (Galas). The suit was for declaration of their easementary rights over the 20ft. wide road situate in the property of the Ramanis and for permanent injunction in respect thereof. The suit was decreed by the court of first instance However, the aforesaid judgment was set aside in appeal and the suit was dismissed. The High Court upheld the aforesaid judgment and order of the appellate court in Second Appeal.

Apart from the above suit, another Suit came to be filed by the Ramanis for declaring that the Galas or their predecessor-in-interest have no right, title and interest in the property and they do not have any right of way through the above land. The aforesaid suit was dismissed by the court of first instance and in appeal, the suit was decreed holding that the Galas have no right of way either by easement of prescription or of necessity on the suit land/road. The Galas were restrained from disturbing the possession of Ramanis over the suit land and from doing any overt act over it.

Aggrieved by the dismissal of their Suit and the decreeing of the Suit of the Ramanis, the two appeals had been preferred by the Galas. Their predecessor- in-interest Joki Woler Ruzer had not preferred any separate appeal which meant that the original plaintiff had accepted the verdict of the High Court.

Referring to Section 4 of the Indian Easements Act, 1882 which defines Easement, the Division Bench of Justice Pankaj Mithal and Justice Prashant Kumar Mishra opined that the easementary right is essentially a right claimed by the owner of a land upon another land owned by someone else so that he may enjoy his property in the most beneficial manner.

Moreover, Section 15 categorically provides that for acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage without any interruption for over 20 years. In the plaint, neither the original plaintiff Joki Woler Ruzer nor the Galas had specifically claimed that they or their predecessor-in- interest were enjoying easementary right of use of the said rasta for over 20 years. They simply alleged that they had been using and managing the same for many years. 

“The use of the term last many years is not sufficient to mean that they have been enjoying the same for the last 20 years. Last many years would indicate use of the said rasta for more than a year prior to the suit or for some years but certainly would not mean a period of 20 or more years. Therefore, their pleadings fall short of meeting out the legal requirement of acquiring easementary right through prescription”, the Bench held.

It was further observed by the Bench that there was no evidence to prove that the Galas were in use of the said land for the last over 20 years uninterruptedly. The Galas entered the scene only on purchasing the said land on 17.09.1994 after the suit had been filed and as such, they could not and had not deposed anything about the pre-existing right or the easementary right attached with the Dominant Heritage. The said right had to be proved as existing prior to the institution of the suit. 

Noting that PW-1 had no authority to act as the Power of Attorney of the Galas at the time his statement was recorded and his evidence was completely meaningless to establish that Galas had acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted, the Bench said, “It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene.”

The Top Court was of the view that the easementary right by necessity could be acquired only in accordance with Section 13 of the Act which provides that such an easementary right would arise if it is necessary for enjoying the Dominant Heritage. In the instant case, findings had been returned not only by the appellate courts but even by the trial court that there was an alternative way to access the Dominant Heritage, which may be a little far away or longer which demolished the easement of necessity. There was no justification to go into those findings of fact returned by the courts below.

In light of such facts, the Galas were not entitled to any easementary right by necessity upon the disputed rasta.The Galas also failed to prove that they had acquired any easementary right under the sale deed. 

On the issue regarding the powers of the appellate court in disturbing the findings recorded by the court of first instance, the Bench referred to section 107 of the Code of Civil Procedure and observed, “...it is evident that the first appellate court is empowered to exercise powers and to perform nearly the same duties as of the courts of original jurisdiction. Therefore, the first appellate court has the power to return findings of fact and law both and in so returning the finding, it can impliedly overturn the findings of the court of first instance if it is against the evidence on record or is otherwise based upon incorrect interpretation of any document or misconstruction of any evidence adduced before the court of first instance.”

Thus, finding no basis to record that the Galas had acquired easementary right over the disputed rasta in any manner much less by prescription, necessity or under an agreement, the Bench dismissed the appeal.