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Fakirappa Jotappa Malemani Vs. Ningappa Shidlingappa Matti - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 455 of 1941
Judge
Reported inAIR1943Bom265; (1943)45BOMLR491
AppellantFakirappa Jotappa Malemani
RespondentNingappa Shidlingappa Matti
Excerpt:
.....act (v of 1882), section 13-indian limitation act (ix of 1908), section 28-sale of immovable property-easement of necessity regarding other property of transferor-transferor not in possession of any property when transferee acquires right under sale-whether transferee acquires easement- extinguishment of right to property under section 28, indian limitation act- whether title to property vests in trespasser in possession.;defendant no. 4 owned two plots of land, a and b. the only means of access to a was over the plot b. in may 1924, defendant no. 4 who was then a minor sold a to plaintiff. in 1930, a successor of defendant no: 4 sold b to a third party. in july 1936 the plaitiff filed a suit against defendant no. 4, and others for an injunction to restrain them from interfering..........section 13(a) the plaintiff acquired an easement of necessity. assuming, without deciding, that a title acquired by adverse possession is one passing by operation of law within section 13, the difficulty is that at the time of this transfer by operation of law, the transferor, that is to say the then lawful owner of the plaintiff's property, did not possess any other property. the other plot no. 1781/1 had been transferred, as i have mentioned, in 1930, so that in 1936 the title had been severed, and i do not see how the plaintiff can spell out an easement under section 13 over land which did not belong to his transferor at the time of the transfer. the case is no doubt a hard one because the plaintiff is unable to reach his land except over defendant no. l's land, and but for the fact.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a decision of the District Judge of Dharwar confirming the decision of the Subordinate Judge of Hubli. The plaintiff sues for an injunction to restrain the defendants from interfering with the plaintiff's passage across the defendants' plot of land, and to remove an obstruction to the passage. It appears that on May 8, 1924, defendant No. 4 who at that time possessed the land both of the plaintiff and of the defendants sold to the predecessor of the plaintiff the plot which is survey No. 178 1/2, and ultimately, in 1935, the plaintiff acquired that plot. In 1930 defendant No. 3 as successor to defendant No. 4 sold the part of the survey number which had been retained by defendant No. 4, namely No. 178 1/1, to defendant No. 1. The lower Courts have held that the only means of access to the plaintiff's land is over the land of defendant No. 1, and but for one difficulty, which I will discuss, it is perfectly clear that the purchaser in 1924 would have acquired an easement of a right of way over the plot No. 178 1/1 which was retained by the vendor. Section 13 of the Indian Easements Act, so far as material, provides that, where one person transfers immoveable property to another (a) if an easement in other immoveable property of the transferor is necessary for enjoying the subject of the transfer, the transferee shall be entitled to such easement. But the difficulty in the plaintiff's way is that in 1924 the vendor, namely defendant No. 4, was a minor. He was aged seventeen year and ten months, and under Indian law a contract by a minor is wholly void. Under English law, by which a contract by a minor is voidable, the Court would no doubt hold that defendant No. 4 in not repudiating this sale after he came of age, had ratified it. But under Indian law the contract, being wholly void, is incapable of ratification. Therefore the plaintiff acquired, no title under the conveyance of 1924, but after twelve years possession he would acquire a title under Section 28 of the Indian Limitation Act, which provides that at the determination of the period limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. As has been pointed out the section only 'extinguishes the right, and does not provide in terms in whom that right is to vest. But the title to immoveable property cannot be left in the air, and it is clear that on extinguishment of the true owner's title, title must follow possession and vest in the trespasser who has got a title by possession. That being so in May, 1936, before this suit commenced, the plaintiff acquired title on the extinguishment of the true owner's title under Section 28, and the concluding paragraph of Section 13 of the Indian Easements Act provides that where immoveable property passes by operation of law, the person from and: to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. Therefore, it is argued, in 1936 it must be deemed that the then owner of the property whose title was extinguished transferred it to the plaintiff and accordingly under Section 13(a) the plaintiff acquired an easement of necessity. Assuming, without deciding, that a title acquired by adverse possession is one passing by operation of law within Section 13, the difficulty is that at the time of this transfer by operation of law, the transferor, that is to say the then lawful owner of the plaintiff's property, did not possess any other property. The other plot No. 1781/1 had been transferred, as I have mentioned, in 1930, so that in 1936 the title had been severed, and I do not see how the plaintiff can spell out an easement under Section 13 over land which did not belong to his transferor at the time of the transfer. The case is no doubt a hard one because the plaintiff is unable to reach his land except over defendant No. l's land, and but for the fact that defendant No. 4 when he sold the plaintiff's land in 1924 was a minor, there is no doubt that the plaintiff would have got an easement. But I do not see how to get over the difficulty discussed above.

2. I think, therefore, that the decisions of the lower Courts were right, and the appeal must be dismissed with costs.


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