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Kesrichand and ors. Vs. Chananmal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 255 of 1958
Judge
Reported inAIR1959Raj58
ActsEasements Act, 1882 - Sections 15; Code of Civil Procedure (CPC) , 1908 - Order 22, Rule 2
AppellantKesrichand and ors.
RespondentChananmal and anr.
Appellant Advocate B.B. Desai, Adv.
Respondent Advocate H.S. Mordia, Adv.
Cases Referred and Jehangirji v. Nariman
Excerpt:
- - where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access shall be absolute. ' 8. in the madras case, air 1918 mad 120, it was held that the words 'belongs to the government' in the last paragraph of section 15 refer not to the time of suit but to the time during which the easement is enjoyed. the words 'belong to the government' cannot refer to the time during which -the easement is enjoyed if plain meaning is given to them. the plaintiffs would be entitled to the right of way for going to the enclosure which they have claimed if they have enjoyed it for a period of 20 years......to go to this enclosure across the land belonging to the defendants, they claimed that they had an easement right of way across the land of the defendants which had been perfected. they also claimed that they had a similar easement right of way for going to hanumanji's temple across the land of the defendants. part of the land over which the easement right of way was claimed for going to the enclosure formerly belonged to the state. a patta of it was granted to one of the defendants, on 9-1-43. the present suit was instituted in 1947. the defendants denied that the plaintiffs ever passed through their land either for going to the enclosure or for going to hanumanji's temple. 3. the trial court held that it had not been proved that the plaintiffs used to go to hanumanji's temple across.....
Judgment:

Jagat Narayan, J.

1. This is a second appeal by the plaintiffs whose suit for injunction was dismissed by both the courts below.

2. The houses of the plaintiffs and the houses of the defendants are situated close to one another. At the back of the houses of the plaintiffs there is an enclosure belonging to them. It is not connected with their houses directly although it lies adjacent to them. The case of the plaintiffs was that they used to go to this enclosure across the land belonging to the defendants, They claimed that they had an easement right of way across the land of the defendants which had been perfected. They also claimed that they had a similar easement right of way for going to Hanumanji's temple across the land of the defendants.

Part of the land over which the easement right of way was claimed for going to the enclosure formerly belonged to the State. A patta of it was granted to one of the defendants, on 9-1-43. The present suit was instituted in 1947. The defendants denied that the plaintiffs ever passed through their land either for going to the enclosure or for going to Hanumanji's temple.

3. The trial court held that it had not been proved that the plaintiffs used to go to Hanumanji's temple across the land of the defendant. The lower appellate court also agreed with this finding of fact. It is based on the evidence on record and is not vitiated by any error of law. There can be no interference in second appeal with this finding. I accordingly dismiss the second appeal so far as the alleged easement right of way for going to Hanumanj'is temple across the land of the defendants is concerned.

4. As for the way for going to the enclosure the trial court found that the plaintiffs had been going across the land of the defendants for' a long time. It was however of the opinion that under the Mewar Qanun Mayad the right of the plaintiffs could only be perfected by uninterrupted user for 40 years which had not been proved. The trial court did not record any finding as to whether user for 20 years had been proved. The lower appellate court upheld the view of law taken by the trial court on the question of limitation und dismissed the appeal. It did not record any finding as to whether user for 20 years had been proved.

5. The relevant law is contained in Section 18(ka) and (kha) of the Mewar Qanun Mayad, which runs as follows :

'(ka) A right of easement is acquired by peaceable enjoyment, openly, as of right, and without interruption for 20 years. It is destroyed by continued interruption without protest for 5 years.

(kha) An easement right is acquired against the State by uninterrupted enjoyment for 40 years.'

6. In my opinion as the plaintiffs claim the right against private persons and not against the State their case falls under Sub-section (ka) and the right will be perfected by continuous user for 20 years.

7. The lower appellate court did not consider the wordings of Section 18 of the Mewar Qanun Mayad. It relied on the view taken in Srinivasa v. Ranganna AIR 1918 Mad 120 and Lalit Kishore v. Ram Prasad, AIR 1943 All 362. Both these rulings are based on an interpretation of the wordings of Section 15 of the Indian Easements Act, the relevant portion of which runs as follows:

'Where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access shall be absolute.

When the property over which a right is claimed under this section belongs to Government this section shall be read as if for the words 'Twenty years' the words 'Sixty years' were substituted.'

8. In the Madras case, AIR 1918 Mad 120, it was held that the words 'belongs to the Government' in the last paragraph of Section 15 refer not to the time of suit but to the time during which the easement is enjoyed. The learned Judges who decided the Allahabad case, AIR 1943 All 362, agreed with the decision given in the Madras case, AIR 1918 Mad 120. A contrary view was taken in Sayaram v. Lahore Electric Supply Co. Ltd. AIR 1942 Lah 124, and Jehangirji v. Nariman AIR 1953 Mad 318. It was held that the extended period, does not apply to suits where the property does not belong to the Government when the suits are filed.

With all respect I find myself in agreement with this view. The use of the verb 'belong' in the present tense indicates that the Government must be the owner of the servient tenement at the time when the right is claimed in the suit. The words 'belong to the Government' cannot refer to the time during which -the easement is enjoyed if plain meaning is given to them. I accordingly find that the decision of the two courts below on the question of limitation is erroneous. The plaintiffs would be entitled to the right of way for going to the enclosure which they have claimed if they have enjoyed it for a period of 20 years.

9. I accordingly set aside the decree of the lower appellate court and remand the suit for decision according to law. The suit was instituted in 1947. The parties have had a full opportunity of adducing all their evidence in the trial court. The suit was instituted in 1947. It has remained pending for 11 years. The lower appellate court should therefore himself record the finding or all the issues after hearing the parties and dispose of the suit.

10. The suit was originally brought by 4 plaintiffs. According to the case put forward in the plaint they are the joint owners of the enclosure. Ambalal plaintiff died. His heirs are his sons. They have not been impleaded. The appeal accordingly abates so far as Ambalal is concerned. On behalf of the defendants it was argued that the right to sue does not survive to the remaining plaintiffs. In my opinion any of the plaintiffs could have maintained the present suit for enforcing his own right of way against the defendants without impleading the other plaintiffs. The right to sue accordingly survives to the remaining plaintiffs.

11. The costs incurred so far by the plaintiffsshall abide the final result.


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