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Sh. Mohammad Ata HusaIn Vs. Haji Qadir Baksh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All560
AppellantSh. Mohammad Ata Husain
RespondentHaji Qadir Baksh and ors.
Excerpt:
- - 5. we have examined the sale-deed dated 1912 and we are satisfied that no such right was reserved to the defendant. in interpreting section 13(a) a comparison has to be made to other clauses of the same section and it will be at once found that there is a difference between an easement enjoyed as a necessity and an easement necessary to enjoy the property as it was enjoyed at the date of the transfer......by the court of first instance. the lower appellate court dismissed it. on second appeal, a learned judge of this court decreed the suit in part. what he did was to grant an injunction to the defendant that he shall not use the door ej except for the purpose of passage for the sweeper, for the purpose of cleaning the latrine near the letter b. the learned judge held that for other purposes the defendant had the doors p and q to use.2. the plaintiff has appealed to this court and ha contends that the learned judge should not have allowed the defendant to use the door ej even for the purpose of use of the sweeper.3. the appellant's argument is that the learned judge of this court was in error when he assumed that the defendant has an easement of necessity for letting the sweeper use.....
Judgment:

Mukerji, J.

1. The plan which has been made a part of the decree of the learned single Judge of this Court will be found useful in understanding the nature of this case. The plaintiff, who is the appellant before us, sold to the defendant the building described on this plan by the letters I H G F E B. It will be noticed that this building is a part of a much larger building which belonged to the plaintiff. The plaintiff brought the suit out of which this appeal has arisen to obtain an injunction restraining the defendant from using the door EJ as a passage. There are other reliefs with which we are not at present concerned. The suit was decreed by the Court of first instance. The lower appellate Court dismissed it. On second appeal, a learned Judge of this Court decreed the suit in part. What he did was to grant an injunction to the defendant that he shall not use the door EJ except for the purpose of passage for the sweeper, for the purpose of cleaning the latrine near the letter B. The learned Judge held that for other purposes the defendant had the doors P and Q to use.

2. The plaintiff has appealed to this Court and ha contends that the learned Judge should not have allowed the defendant to use the door EJ even for the purpose of use of the sweeper.

3. The appellant's argument is that the learned Judge of this Court was in error when he assumed that the defendant has an easement of necessity for letting the sweeper use the door EJ.

4. On behalf of the respondent it was argued that the learned Judge was right and besides, by the deed of sale, a right was reserved to him for egress and ingress for himself and the servants through the door EJ.

5. We have examined the sale-deed dated 1912 and we are satisfied that no such right was reserved to the defendant. The words 'rights appurtenant' did not mean any right of passage over the land which was not sold.

6. Coming to the question of easement of necessity, we have to refer to Section 13(a), Easements Act. It lays down as follows:

Where one person transfers... immovable property to another,

(a) if an easement in other immovable property of the transferrer... is necessary for enjoying the subject of the transfer... the transferee... shall be entitled to such easement.

7. The words, 'if an easement is necessary' have been taken to imply an absolute necessity. A mere convenience has not been held to come within this language. In interpreting Section 13(a) a comparison has to be made to other clauses of the same section and it will be at once found that there is a difference between an easement enjoyed as a necessity and an easement necessary to enjoy the property as it was enjoyed at the date of the transfer. Following this interpretation, in two reported cases of this Court, it was held that in Clause (a), Section 13, 'necessity' meant an absolute necessity: see Sukhdai v. Kedarnath [1911] 33 All. 467 and Gaddar v. Kalla [1919] 17 A.L.J. 672. With these cases we entirely agree.

8. Now we have to see whether the right of passage for a sweeper to the latrine is a matter of absolute necessity to the defendant or not. It is common ground that to the west of the building belonging to the parties is Municipal land and a public road (see the statement of the pleaders made before the Court of first instance, document 37-A). Looking at the plan, we find that it is quite possible for the plaintiff to open a door in the western wall between P and B so as to permit any sweeper to come and flush the latrine near D. In the case reported in Sukhdai v. Kedarnath [1911] 33 All. 467 it was held that where a purchaser could make a passage for himself by piercing a door, it could not be said that he had an easement of necessity of passing over his transferrer's property. Following that case we are of opinion that the defendant can provide him self with a passage for the sweeper by opening a door at any place in the wall between B and P.

9. The learned counsel for the respondent has argued that he would be at the mercy of the Municipal Board in opening the proposed door, because the Municipality might refuse him permission to open it. We have been referred to Section 178, Municipalities Act (Local Act). It provides that a notice has to be given to the Municipal Board, inter alia, when a party wants 'to re-erect or to make a material alteration of a building.' What is a material alteration in a building has been defined in the same section, in Clause (3). We are of opinion that the opening of a door in an existing wall will not materially alter a building within the meaning of Section 178, Municipalities Act. We must take it that the Municipality will act reasonably and not arbitrarily. The law, certainly, as we read it, does not enable the Municipal Board to refuse permission to open a door if it is to be opened reasonably in an existing wall.

10. The result is that we are of opinion that what has been allowed to the defendant by the learned Judge of this Court was not an easement of necessity. In this view the plaintiff's suit should have succeeded in its entirety.

11. In the result we allow the appeal, set aside the decree of this Court and restore the decree of the Court of first instance. The appellant will have his costs throughout.


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