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Mumtaz Ali and ors. Vs. Mohd. Sharif Khan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2670 of 1964
Judge
Reported inAIR1973All98
ActsEasements Act, 1882 - Sections 4
AppellantMumtaz Ali and ors.
RespondentMohd. Sharif Khan
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateVindheshwari Prasad and ;Begam M.A. Rahman, Advs.
DispositionAppeal dismissed
Excerpt:
.....therefore,..........to be taken as final.3. the real contention of the learned counsel is that the right to use the land for purposes of sitting and sleeping is not such a right which could be regarded as an easementary right entitling the plaintiff to get an injunction. the lower appellate court has found that this land was being used by the plaintiff and his ancestors for more than twenty years continuously and without any interruption as a sahan for purposes of sitting and sleeping and also as a passage. learned counsel has not contended that the right to passage is not an easementary right. he has confined his arguments to the right regarding the use of the land for purposes of sitting and sleeping. the submission is that such user of land may be for the benefit of residents of the house, but cannot.....
Judgment:

Hari Swarup, J.

1. This is defendants' second appeal arising out of a suit for a permanent injunction to restrain the defendants from digging any foundations or making any constructions over the land in dispute. The plaintiff claimed that he had ease-mentary rights over this land and the same Were likely to be interfered with if the injunction sought for was not granted. The rights he claimed consisted of the right of passage and the right to use the land as Sahan for purposes of sitting and sleeping. The defence was that the plaintiff had no such right and that the land belonged to the defendants and that they had the right to dig foundations and make constructions. The trial Court dismissed the suit. On appeal by the plaintiff the additional Civil Judge reversed the trial Court's decree and decreed the suit and issued the injunction prayed for. Aggrieved by the decree, the defendants have come up in second appeal.

2. Learned counsel for the appellants has contended firstly, that the findings recorded by the lower appellate Court are not findings but the only argument advanced is that they cannot be sustained on a proper appreciation of the evidence. It is not open in the second appeal to upset the findings of the fact recorded by the first appellate Court after due consideration of the oral and documentary evidence produced in the case, only on the ground that another conclusion is possible if a reappraisement of the evidence is made. The finding of the lower appellate Court is that the defendants have failed to prove their title over the land in suit. The defendants had relied upon the sale deed In their favour dated 28-12-1962 in which this land was shown as belonging to the vendor, but the defendants failed to show that their vendor had any title In this land. The evidence produced by the defendants regarding possession was also disbelieved by the Court below and it has recorded a finding that the defendants were neither in possession nor had ever used this land. The finding that the defendants were neither the owners nor in possession of the land In suit being based on evidence, has to be taken as final.

3. The real contention of the learned counsel is that the right to use the land for purposes of sitting and sleeping is not such a right which could be regarded as an easementary right entitling the plaintiff to get an injunction. The lower appellate Court has found that this land was being used by the plaintiff and his ancestors for more than twenty years continuously and without any interruption as a Sahan for purposes of sitting and sleeping and also as a passage. Learned counsel has not contended that the right to passage Is not an easementary right. He has confined his arguments to the right regarding the use of the land for purposes of sitting and sleeping. The submission is that such user of land may be for the benefit of residents of the house, but cannot be regarded as the doing of something for the beneficial enjoyment of the dominant tenement itself. The contention is not sound.

4. Easement has been defined in Section 4 of the Easements Act as:--

'An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.'

The right which the plaintiff claimed on the land in dispute was being exercised by the plaintiff and before him by his ancestors in their capacity as residents of the adjoining house. In the case of Re Ellenborough Park; Re Davies (deceased) Powell v. Maddison, (1955) 2 All ER 38 right to use the land as a pleasure ground was held to be an easementary right. Dankwerts, J. dealing with the contention that :--

'the easement must be calculated to benefit the dominant tenement as a tenement, and not merely to confer a personal advantage on the owner of it,'

observed :

'This I find somewhat difficult to apply, for it seems to me that the benefit received from a right of way is necessarily a benefit to the owner or occupier of the tenement rather than to the tenement itself, though a right of support might be said to benefit the tenement as such ..... I find it difficult to see what are the objections to a right to use neighbouring land for the purpose of enjoying air and exercise and similar amenities. Further, it is evident that the attachment of such amenities for the ownership of a particular house may add considerably to the value and the enjoyment of the house ..... In my view ..... theright to use a pleasure ground is a right known to the law and an easement.'

Section 4 of the Easements Act places no restrictions on the nature of user of the servient heritage by the owner or occupier of the dominant heritage. A right of easement need not therefore, necessarily be a right yielding direct benefit to the dominant tenement itself, but may consist of a right Which may yield direct benefit of the owner or occupier of the property and only consequentially and indirectly be for the more beneficial utilisation of the dominant tenement. If the inhabitants, for a more beneficial living and enjoyment of the house, use the adjoining land for sitting and sleeping purposes, the user cannot but be deemed to be for the benefit of the occupants and consequentially for the beneficial enjoyment of the house itself because if the user is an amenity for the residents of the house it is bound to add to the value and enjoyment of the house. Applying the test which Dankwerts, J. applied, the use of the land for purposes of sitting and sleeping by the plaintiff, in the present case, will amount to a right of easement entitled to be protected by law.

5. The appeal must, therefore, fail. It is accordingly dismissed with costs.


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