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Girish Chandra Sahu and ors. Vs. Nagendranath Mitra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 154 of 1975
Judge
Reported inAIR1978Ori211; 46(1978)CLT52
ActsEasements Act, 1882 - Sections 4; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantGirish Chandra Sahu and ors.
RespondentNagendranath Mitra and ors.
Appellant AdvocateR. Mohanty, Adv.
Respondent AdvocateR.C. Patnaik, Adv.
DispositionAppeal dismissed
Cases ReferredIn Marshall v. Mayor Aldermen and Burgesses of
Excerpt:
.....act otherwise lawful, or a neighbour might deprive a landowner of the benefit of certain things which in the course of nature have been provided for the common good of mankind. natural rights, though resembling easements in some respects, are clearly distinguishable from them. the rights of the public to pass along the highway are subject to this right of access just as the right of access is subject to the rights of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. patnaik that the ratio indicated in the decision reported in ilr (1950) cut 595 :(air 1951 orissa 124), holds good and is;.....independently and came to hold that (i) the state may be a proper party, but even without the state, plaintiffs' suit was not liable to be dismissed; (ii) notice under section 80 of the civil p. c. was not necessary and the suit would not fail for want of notice; (iii) plaintiffs had satisfactorily proved that they had a right of easement of necessity over plot no. 828; (iv) even otherwise, plaintiffs were entitled to the right of access to the highway at all points from their land in plot no. 827 and there was no question of pleading and considering a definite passage. on these findings, he affirmed the decree of the trial court. this appeal is directed against the aforesaid affirming judgment and decree.6. when this appeal was placed before one of us for final hearing, it was.....
Judgment:

R.N. Misra, J.

1. Defendants 1, 2 and 3 have carried this appeal against the affirming judgment and decree of the learned Additional District Judge of Cuttack in a suit for permanent and mandatory injunction.

2. Plaintiffs l and 2 and pro forma defendants 4 and 5 were owners of plots Nos. 827 and 828 lying to the immediate north of the Cuttack-Paradeep Road, Plot No. 828 with an area of 2 decimals which lay between plot No. 827 and the road was acquired by the State Government under the provisions of the Land Acquisition Act of 1894 for the purposes of widening the road. With the acquisition of plot No. 828, plot No. 827 became the abutting land. As the level of the said plot was low, plaintiffs decided to fill it up and raise structures thereupon for the purpose of constructing shop rooms. Defendants 1 to 3 negotiated with the plaintiffs for purchase of the property, but the owners were not willing to part with it as they were of the view that there was immense potentiality and the same would yield them good return. After acquisition, the Tahsildar granted a temporary lease over a part of plot No. 828 for agricultural purposes for one year only in favour of the contesting defendants. Defendants 1 to 3 raised kutcha houses on the property in violation of the terms of the lease and even after the period of lease was over, did not surrender the land to the State. The defendants started raising constructions on plot No. 828 in such a manner that the plaintiffs' right to come to the highway from plot No. 827 appeared to be in serious jeopardy. Plaintiffs, therefore, filed the suit for pulling down the structure raised by the defendants which interfered with plaintiffs right of approach to the highway. They also asked for permanent injunction restraining the defendants from raising any further structures of interfering with their right.

3. Defendants 1 to 3 filed a joint written statement and contended that after acquisition of plot No. 828, the same was transferred to the Anchal and the defendants have taken a lease of the plot from the State and are in possession as lessees. They have constructed full fledged shop rooms and are in possession of the same. The construction does not affect access from plot No. 827. As a matter of fact, there was no such passage over plot No. 828. Plaintiffs' right, if any, on plot No. 828 stood extinguished as a result of acquisition. The other defendants did not contest and were set ex parte.

4. The trial Court found that (i) before acquisition of plot No. 828, plaintiffs had access to plot No. 827 over plot No. 828; (ii) after acquisition of plot No. 828 and raising of structures by defendants 1 to 3 on that plot, there was no access from or to plot No. 827 from the Cuttack-Paradeep Road; (iii) plaintiffs have the right of easement by necessity over plot No. 828. The trial Court came to further find that the State of Orissa (defendant No. 6) was not a necessary party and no relief had actually been claimed against it. On these findings, the suit was decreed.

5. Four points were canvassed in appeal before the learned Appellate Judge:

(1) The defendants 1 to 3 being temporary lessees under the State, the right of easement should have been claimed by the plaintiffs not against them, but against the real owner, i.e., the State;

(2) Notice under Section 80 of the Civil P. C. having not been given to the State which was a necessary party, the suit was bound to fail;

(3) Plaintiffs had failed to establish the alleged right of easement by necessity; and

(4) Plaintiffs are not entitled to claim right of way over the whole plot in the absence of clear indication of a definite passage.

The learned Appellate Judge examined each of the points independently and came to hold that (i) the State may be a proper party, but even without the State, plaintiffs' suit was not liable to be dismissed; (ii) notice under Section 80 of the Civil P. C. was not necessary and the suit would not fail for want of notice; (iii) plaintiffs had satisfactorily proved that they had a right of easement of necessity over plot No. 828; (iv) even otherwise, plaintiffs were entitled to the right of access to the highway at all points from their land in plot No. 827 and there was no question of pleading and considering a definite passage. On these findings, he affirmed the decree of the trial Court. This appeal is directed against the aforesaid affirming judgment and decree.

6. When this appeal was placed before one of us for final hearing, it was directed to be placed before a Division Bench for disposal and that is how the appeal has now come for hearing before us.

7. Mr. Ranjit Mohanty for appellants maintains that the State of Orissa was a necessary party to the litigation and in view of the fact that counsel for the plaintiffs-respondents had allowed the State to be deleted from the litigation as would appear from Order No. 5 dated 6-10-1977, when he could not overcome the difficulty arising out of want of notice under Section 80 of the Civil P. C., the suit is no more maintainable. It is next contended that with acquisition of plot No. 828, the easementary right, if any, of the plaintiffs over that plot must have been extinguished and plaintiffs were, therefore, not entitled to lay claim on that score any longer. It is finally contended that the Indian Easements Act of 1882 has been extended to Orissa by Orissa Act 24 of 1967 and after its application, the right as claimed in the suit has to be determined on the basis of this statute and not on the basis of the common law. The Courts below have gone wrong in placing reliance on the Bench decision of this Court in the case of Chairman, District Board, Puri v. C. H. Achaya, ILR (1950) Cut 595 : (AIR 1951 Orissa 124), which laid down the law mainly relying upon the provisions of a special Act. We may now examine each of these three contentions.

8. When the suit was filed on 11th March, 1969, the State of Orissa was not a defendant. By amendment, the State was impleaded as defendant No. 6 on 16-2-1971. In the suit, under Issue No. 1, the question of want of notice under Section 80 of the Civil P. C. was examined, but the learned Munsif did not find against the plaintiffs on that score. In appeal, the question was re-agitated and the learned Additional District Judge examined the matter and held that the State was a proper party and not a necessary party. In second appeal, when the question of want of notice was again agitated, counsel for the plaintiffs-respondents asked for deleting the State from the category of defendants. In this background, the question for consideration is as to whether the State is a necessary party and without it, the suit cannot fee maintained. Mr. Patnaik for the plaintiffs has contended that plot No. 828 has been acquired by the State to be made a part of the highway. Therefore, when the plaintiffs are interested in making the land covered by the said plot available for passage, the State can have no grievance. Simultaneously it is agitated that the State has not been resisting the claim of the plaintiffs and relying on the decision of this Court In the case ofAchut Kalsai v. Madhu Kalsai, (1972) 38 Cut LT 105, it is contended that the State is not a necessary party. In the reported decision, it was said:--

'On the other hand, reliance is placed by Mr. Misra who appeared for the respondent on two decisions -- one reported in Sabirer v. Behari Mohan Pal, AIR 1928 Cal 23 and the other in Kedaruddin v. Asrafali, AIR 1937 Cal 355. In the earlier Calcutta case a Division Bench of that Court came to hold that the ultimate owners of the land were not necessary parties if they were not resisting the easementary right. In the subsequent case Dr. Mukherjee, J., as his Lordship then was, came to hold that non-joinder of the owner of the servient tenement who was not obstructing the easement was not fatal to the suit.

In this case there is no allegation of any resistance from the State of Orissa to the flow of water over the Government land intervening between the plaintiff's premises and the channel by the side of the village road. The entire obstruction came from the defendants and the plaintiff is really aggrieved by the defendants' action. There may be cases where the owner of the servient tenement would not resist and the resistance would come from quite a different quarter. In such cases the owner of the servient tenement would certainly not be required to be before the Court as a necessary party to the litigation. The present case seems to be one of that type and the State of Orissa which is the owner of the intervening plot not being before the Court would not affect the suit in any manner................'

We are inclined to agree with Mr. Patnaik that the State is not a necessary party when there was no resistance from the State and particularly because the State had already offered the land to be made a part of the highway. The first point canvassed on behalf of the appellants must, therefore, fail.

9. The next contention is on the basis of the provision contained in the Land Acquisition Act itself. Section 16 of the Act provides:--

'When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances.'

Relying on the decision of the Judicial Committee in the case of Municipal Corporation of the City of Bombay v. Great Indian Peninsula Rly. Co., AIR 1916 PC 3. Mr. Mohanty for the appellants contends that the easementary right claimed by the plaintiffs could not have survived after acquisition. We must first find out whether plaintiffs had any easementary right of passage over plot No. 828. It is too elementary a proposition to justify any lengthy discussion that for the acquisition of an easement, there must be two tenements--a dominant tenement and a servient tenement and title in these two tenements must inhere In different persons. Admittedly, prior to acquisition, the plaintiffs were owners of plot No. 828 (the acquired plot) as also plot No. 827 from which access is now claimed to the highway over plot No. 828. When title of both the plots vested in the plaintiffs, there could be no scope for acquisition of an easementary right. The courts below went wrong in proceeding on the footing of the existence of an easementary right.

Mr. Patnaik for the plaintiffs-respondents does not claim before us that the plaintiffs had any easementary right. According to him what the plaintiffs claimed was a natural right arising out of relative location of the plots and such a right is not an encumbrance. He further contends that plaintiffs' claim has not to be examined with reference to the provisions of the Land Acquisition Act particularly when the acquisition is for the purpose of widening the highway and the law is as claimed by Mr. Patnaik) that the owner of an abutting plot of land is entitled to approach the highway from every point of his land to every point of the road. In the premises, we think it is not necessary to examine the contention of Mr. Mohanty on this score any further. In Peacock on Easements, the distinction between natural right and easement was drawn thus:--

'Natural rights are by law annexed to, and are inherent in, land ex jure naturoe, of natural right, and exist prima facie in all cases as between a landowner and his neighbour, otherwise, as Mr. Goddard says in his work on Easements (7th Edn. p. 3) 'no man would be assured that his land would not at any moment be rendered useless by a neighbour's act otherwise lawful, or a neighbour might deprive a landowner of the benefit of certain things which in the course of nature have been provided for the common good of mankind.'

Further, natural rights are rights in rem, that is, enforceable against allwho may violate them, and they are either affirmative, as rights to do something, or negative, as rights which every owner of immoveable property has, that his neighbour shall not disturb the natural conditions under which he enjoys his property.

Natural rights, though resembling easements in some respects, are clearly distinguishable from them.

The essential distinction between easements and natural rights appears to lie in this that easements are acquired restrictions of the complete rights of property, or, to put it in another way, acquired rights abstracted from the ownership of one man and added to the ownership of another, whereas natural rights are themselves part of the complete rights of ownership, belong to the ordinary incidents of property and are ipso facto enforceable in law.

Natural rights are themselves subject to restriction at the instance of easements.'

(Tagore Law Lectures, 1899 -- The Law Relating to Easements in British India. By Frederick Peacock -- 3rd Edition, pp. 24-25.)

Mr. Patnaik relies on the provisions of Section 7(b) of the Indian Easements Act where rights to advantages arising out of situation have been dealt with. A set of statutory illustrations have been provided under the section. None, however, deals with a right of passage. Bramwell, L. J. in the case of Bryant v. Lefever, (1879) 4 CPD 172, observed:

'It is to have all natural incidents and advantages, as nature would produce them; there is a right to all the light and heat that would come, to all the rain that would fall, to all the wind that would blow; a right that the rain, which would pass over the land, should not be stopped and made to fall on it; a right that the heat from the sun should not be stopped and reflected on it; a right that the wind should not be checked, but should be able to escape freely; and if it were possible that these rights were interfered with by one having no right, no doubt an action would lie. But these natural rights are subject to the right of adjoining owners, who for the benefit of the community, have and must have rights in relation to the use and enjoyment of their property that qualify and interfere with those of their neighbours, rights to use their property in various ways in which property is lawfully and commonly used.'

Here again, no mention has been made of a passage as a natural right. We do not intend to express any final opinion on this aspect of the matter, because in our view the question raised in this case can be disposed of without doing so.

10. A Bench of this Court in the case reported in 1LR (1950) Cut 595 : (AIR 1951 Orissa 124) was examining the right of access to the District Board road running from Pipili to Khurda via Kudiari. The defendants had obtained a lease of the roadside waste intervening between the plaintiff's lands and the road and started putting up a structure which interfered with the right of the plaintiff in approaching the public road. Thus arose the dispute. After quoting several English authorities, this Court concluded (at p. 127 of AIR):

'The above considerations establish that roadside lands are prima facie part of the road and are vested in the local authority in the same way as the roads and subject to the same kind of use thereof and subject to the same rights and incidents as the road except in so far as any specific statutory provision provides to the contrary expressly or by necessary implication.....,...'

At another place in the said reported decision, it has been further stated:

'A road is a highway for the passage of all the members of the public. The public have a right of passing and repassing thereon and can exercise that right in a reasonable way without transgressing the usual mode in which such right is normally exercised (see Smith's Leading Cases, Vol. II, 13th Edn., page 166). A road is also meant to provide access to and from the tenements which abut on it on either side ............

This right of immediate access from private property to a public highway is a private right distinct from the right of the owner of that property to use the highway as one of the public, as has been pointed out in William Lyon v. Wardens & Co., of the Fish Monger's Co., etc., (1875-76) A. C. 662, a case relating to the rights of an owner of a wharf on the bank of a navigable river which in this respect are the same as those of an owner of land abutting a public, highway. Such a right of access belongs to the proprietor of the adjoining land as a natural incident to the right to the soil itself of such adjoining lands and he is entitled to the benefit of it as he is to all the other natural ad-vantages belonging to the land of which he is the owner (see page 674 of the report of the above-mentioned case). In Marshall v. Mayor Aldermen and Burgesses of the County Borough of Blackpool, 1935 AC 16, the House of Lords has explained that right in the following terms:

'The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access just as the right of access is subject to the rights of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. Apart from any statutory provision, there is no obligation upon an adjoining owner to fence his property from the highway.'

This right of access has also been recognised in the Indian law as appears from the following decisions: AIR 1938 Pat 423, AIR 1935 Lah 196 and AIR 1939 Pat 683. In AIR 1938 Pat 423 and AIR 1935 Lah 196, this has been referred to as a right of road frontage and it has been said :

'The right of road frontage no less than the right of access is implicit in the position of the land.'

It is unnecessary to discuss for the purpose of this case whether the right of frontage is or is not wider than the right of access and whether such right also arises with reference to the position of the land. There can, however, be no doubt that the owner of the abutting land has an actionable right if his right of access to the frontage is infringed................'

Mr. Mohanty for the defendants-appellants made an attempt to distinguish the Bench decision of this Court by contending that the learned Judges were considering the plaintiffs claim in that case in the background of the provisions of the Bihar and Orissa Local Self-Government Act. According to Mr. Mohanty, bereft of the statute, the law is not what has been laid down in the reported decision. It is further contended by him that now that the Easements Act has been extended to Orissa, plaintiffs' claim has got to be examined keeping in view the statutory provision contained therein and plaintiffs cannot fall back upon any natural right arising out of relative location of their land and the highway. The Indian Easements Act is not exhaustive on the law relating to the matter and we are not prepared to accept the stand of Mr. Mohanty that plaintiffs would not have any cause of action in the facts of the present case if they are not able to establish an easementary right. Mr. Patnaik has placed reliance on a passage from the Tagore's Law Lectures on the law relating to Easements in British India by Peacock, where it has been said that 'natural rights are not capable of extinction so long as the subject of them continues to exist. They may be suspended by virtue of an easement, reviving on the extinction of the latter, but neither by non-user nor by any other means short of the destruction of the subject-matter can they be extinguished' (See page 263 of the Book). This view of the learned author has been accepted in 'Gale on Easements'. Once the position is found to be such, It must follow that the attempt of Mr. Mohanty to distinguish the Bench decision of this Court has no rational basis and the law laid down therein has application even if the road and its use are not regulated by a special statute. We are, therefore, inclined to accept the submission of Mr. Patnaik that the ratio indicated in the decision reported in ILR (1950) Cut 595 : (AIR 1951 Orissa 124), holds good and is; applicable.

11. It has been found as a fact by the courts below that from plaintiffs' land in plot No. 827, there is no other passage to the highway. It has also been found that the defendants without authority have raised constructions on plot No. 828 which affect the right of approach of the plaintiffs to the highway lying beyond plot No. 828. In our view, the decree granted in the courts below is just and proper and there is no merit in this appeal. We would accordingly dismiss the appeal with costs throughout.

Mohanti, J.

12. I agree.


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