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Bhaironlal Vs. Rampershad - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 92 of 1949
Judge
Reported inAIR1954Raj49
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Evidence Act, 1872 - Sections 17 and 21 - Order 6, Rule 2; Easements Act, 1882 - Sections 60
AppellantBhaironlal
RespondentRampershad
Appellant Advocate R.K. Rastogi, Adv.
Respondent Advocate D.M. Bhandari, Adv.
DispositionAppeal allowed
Excerpt:
.....defendant's passage through his yard whenever he liked. in order to hold whether a prescriptive easement or easement of necessity was available to a party, it is necessary that there should be pleading as well as evidence on that behalf. a-1, the defendant 1 had a perfect right to relinquish that right. in order to save himself from the claim for pre-emption, and to have the two doors of the plaintiff's house closed, he consented only to have a right of way through the plaintiff's court-yard only so long as the owner of the property liked, and to close it when it was so desired. it was also stipulated that the plaintiff could have the door closed whenever he liked. the door could be closed whenever the owner of the plaintiff's 'haveli' so liked. the plaintiff was, therefore, clearly..........the plaintiff? (4) what will be the relief?' on issue no. 1, he held that the agreement ex. 2 was rightly executed, and was genuine, and was enforceable. on issue no. 2, he held that the defendants could not use the passage for any other purpose except residential purposes. on issue no. 3, he refused to give permanent injunction restraining the defendants from passing through the chauk of the plaintiff, and from interfering with the plaintiff's closing of the door. he, however, gave the alternative relief of permanent injunction restraining the defendants from using the plaintiff's 'chauk' for any other purposeexcepting residential purposes. he, consequently, decreed the suit for the alternative relief.6. both the parties went in appeal against the decree of the munsif, and the learned.....
Judgment:

Sharma, J.

1. This second appeal arises out of a suit by the plaintiff-appellant for a permanent injunction that the defendants be restrained from passing through the 'chauk' belonging to the plaintiff, and also from interfering with the plaintiff's closing of the door between the said 'chauk' and the house of defendant 1 lying to the east of it. In the alternative, it was prayed that in case permanent injunction as prayed above be not granted, the defendants be restrained by permanent injunction from passing through the 'chauk' for any other purpose except residential purposes.

2. The plaintiff purchased his house , from Lakshmi Narain Kalyan Baksh, who, in turn, had purchased it from Har Sahai. Har Sahai had purchased the house from Sheonarain, who was the original owner of the house of the parties. After Sheonarain sold the house now belonging tothe plaintiff to Har Sahai, he sold the house lying to the east of the said house to defendant 1 on 26-5-1916. Har Sahai sold his house to Lakshmi Narain Kalyan Baksh by the sale deed dated 15-10-1921, and the latter sold it to the plaintiff by the sale deed dated 12-12-1944.

3. The plaintiff's case is that there existed one door belonging to the defendant in the well between the two houses, and two doors belonging to the plaintiff in the said well. After the sale to the defendant, Har Sahai, who was the then owner of the plaintiff's house, wanted to bring a suit for pre-emption of the property purchased by defendant 1. On this a compromise was arrived at between the fathers of Har Sahai and defendant 1, who were both minors at that time. An agreement, Ex. 2, was, therefore, executed by the father of Har Sahai as well as the father of defendant 1 in their capacity as guardians of their sons. It was provided in that agreement that the parties had settled their dispute about pre-emption of the house sold to defendant 1, inasmuch as Har Sahai gave up his right of pre-emption and stipulated to close the two doors belonging to him in the wall between the two houses. Defendant 1 was allowed to pass through the 'chauk' for residential purposes only, so long as Har Sahai liked. Har Sahai was, however, entitled to call upon defendant 1 to close the door whenever he so liked, and if defendant 1 did not do it, Har Sahai was given a right to have the door closed through Court.

The plaintiff says that he no longer wants the defendants to use his house as a passage to the defendant's house, and called upon defendant 1 to close the door, but he did not listen. The plaintiff, therefore, prayed for a permanent injunction to restrain the defendants from using his house as passage to the defendant's house, and to restrain them from interfering with the plff.'s closing the door. In the alternative he prayed for a permanent injunction restraining the defendants from using the passage for any other purpose except residential purposes.

4. The defendant did not admit the agreement Ex. 2, which is dated 10-7-1916. He pleaded that his vendor Sheonarain under the sale deed Ex. E 1, dated 26-5-1916, conferred upon him the right to use the plaintiff's 'chauk' as a passage for his house.

5. The learned Munsif, Jaipur West, who tried the case, framed the following four issues:

'(1) Whether defendant 1 and his father executed the document Ex. 2 in favour of Har Sahai which is liable to be enforced?

(2) Whether the tenants of defendant 1 use the chowk more than the rights of defendant 1 and if it is so what are their acts?

(3) In case issue No. 1 is proved in favour of the plaintiff, whether an injunction can be issued as prayed for by the plaintiff?

(4) What will be the relief?'

On issue No. 1, he held that the agreement Ex. 2 was rightly executed, and was genuine, and was enforceable. On issue No. 2, he held that the defendants could not use the passage for any other purpose except residential purposes. On issue No. 3, he refused to give permanent injunction restraining the defendants from passing through the chauk of the plaintiff, and from interfering with the plaintiff's closing of the door. He, however, gave the alternative relief of permanent injunction restraining the defendants from using the plaintiff's 'chauk' for any other purposeexcepting residential purposes. He, consequently, decreed the suit for the alternative relief.

6. Both the parties went in appeal against the decree of the Munsif, and the learned District Judge, Jaipur City, dismissed both the appeals excepting that in the appeal filed by the defendant he restrained the defendants from bringing vehicles only meant for carrying loads to the plaintiff's yard. He made it clear that there was no restriction to their right of way over the yard for residential purposes.

7. Against this decree of the learned District Judge, the plaintiff has come in appeal, and the defendant has filed cross-objections.

8. I have heard the learned counsel for both the parties. So far as the cross-objections filed by the defendant are concerned, Mr. D.M. Bhandari, appearing on his behalf, did not press them. As regards the appeal, Mr. R.K. Rastogi, appearing on behalf of the appellant, argued that both the lower Courts having held that the agreement Ex. 2 was executed on behalf of Har Sahai as well as defendant 1, they were wrong in not enforcing it. It was argued that only a licence for passing over the 'chauk' of the plaintiff was created in favour of defendant 1 by the agreement Ex. 2. It was riot claimed by the defendant in his written statement that Sheonarain had any right of easement of passing over the 'chauk'. It was also not pleaded that defendant 1 had acquired any right to easement of way through the 'chauk' in dispute. The only ground on which the right of passing through the 'chauk' was claimed was the so-called right in the sale-deed Ex. 1 executed by Sheonarain in favour of defendant 1. Sheo Narain having already parted with the property, which now belongs to the plaintiff, had no right to create any right of way through that property. The claim of defendant 1, therefore, for a right of way was altogether wrong.

9. On behalf of the defendant it was argued by Mr. Bhandari that Sheonarain had a right of easement of necessity as there was no other way to the house which he had retained for himself after selling the house, which now belongs to the plaintiff, to Har Sahai. This right was sold to the defendant along with the house which was sold to him. The agreement Ex. 2 was never acted upon. Even in the sale deeds executed by the plaintiff's predecessors-in-interest it has been provided that defendant 1 would have a right to pass through the house of the plaintiff, and that the plaintiff would have a right to stop him from passing through his house only when the defendant had opened another gate in some other direction.

10. I have considered the arguments of learned counsel for both the parties. The plaintiff places reliance upon the conditions laid down in the agreement Ex. 2. It was no doubt executed during the minority of Har Sahai as well as of defendant 1, but it was executed by their fathers as their guardians. The agreement was executed for the purpose of settling a dispute between the parties, and it was on account of this agreement that Har Sahai gave up his right to pre-empt the house sold to the defendant, and the doors of the plaintiff's house between the two properties were also closed. So far as Har Sahai was, therefore, concerned, the agreement was fully acted upon. The agreement was also for the benefit of both the parties, and, therefore, their respective guardians could validly execute such an agreement, and it would be binding upon the minors.

Defendant 1 did not plead that the agreement was not binding upon him. He only pleaded thatit was not genuine. It has, however, been held by both the lower Courts that the agreement was genuine, and this finding of fact is now binding on this Court in second appeal. The learned Munsif held in so many words that the agreement was enforceable. The learned District Judge, however, holds that the plaintiff's predecessors-in-title were unaware of the terms of Ex. 2 or were unwilling to enforce them, and that the defendant used the yard as of right conferred under Ex. A 1, and not by permission of the owner of the yard. He came to this finding on the basis of certain recitals in the sale-deed executed by the plaintiff's predecessors-in-title, in which it has been recited that defendant 1 had a right to pass through the yard for residential purposes to his house, and that whenever he opened another door, the door now existing between the two houses could be closed at the instance of the owners of the house now belonging to the plaintiff. No doubt, there are such recitals in Ex. 1, which is the sale-deed executed by Har Sahai in favour of Lakshmi Narain Kalyan Baksh, and in Ex. 3, which is the sale deed executed by Lakshmi Narain Kalyan Baksh in favour of the plaintiff. These sale-deeds had, however, nothing to do with the defendant, who was not a party to them. At the most it can be said that there is some sort of admission of the plaintiff's predecessors-in-interest in these sale-deeds. The admission of the parties or those through whom the parties claim can at the most raise a presumption that whatever is contained in them is true. This presumption is, however, rebuttable, and can be rebutted by any legal evidence. Such admissions are not conclusive vis-a-vis third parties, who were not parties to the documents in which such admissions are contained.

In the present case, Ex. 2 has been filed, and it shows what sort of right was given to defendant 1. Exhibit 2 says that defendant 1 would use the passage at the pleasure of Har Sahai, who would be entitled to get the door closed and stop the defendant's passage through his yard whenever he liked. It explicitly says that defendant 1 would have no other right in the 'chauk'. The presumption, therefore, which might have been drawn by the admissions of the plaintiff's predecessors-in-interest in the sale-deeds that the door between the two houses could be closed only when the defendant opened another door to his house is rebutted by the contents of Ex. 2. The defendant does not claim in his written statement that Sheonarain had any right of easement of way through the house sold to the plaintiff's predecessors-in-interest. If the defendant relied on any right of easement, he ought to have said in his written statement whether it was the prescriptive right of easement or easement of necessity, which Sheonarain had through the house sold to Har Sahai. This has not been done, and, therefore, no case of easement can be made out in his favour.

In order to hold whether a prescriptive easement or easement of necessity was available to a party, it is necessary that there should be pleading as well as evidence on that behalf. Obviously, both the properties being originally the properties of Sheonarain, he could not acquire a prescriptive right of easement of way through the plaintiff's house, unless he had used it as a right without interruption for the requisite period of 20 years. In order to have an easement of necessity, it was necessary to prove that no other gate for passing into the defendant's house could be opened on any other side. as has been said above, there is no such pleading, nor is there any suchevidence. It cannot, therefore, be said that Sheonarain had any right of easement through the plaintiff's yard. He could not, therefore, confer any such right on defendant 1, because he had already disposed of the property now belonging to the plaintiff to Har Sahai. It was Har Sahai alone who could create any such right. Even supposing that Sheonarain had any right of easement, and transferred it to defendant 1 by the sale-deed Ex. A-1, the defendant 1 had a perfect right to relinquish that right. In order to save himself from the claim for pre-emption, and to have the two doors of the plaintiff's house closed, he consented only to have a right of way through the plaintiff's court-yard only so long as the owner of the property liked, and to close it when it was so desired. Therefore, even if Sheonarain had any right of easement, which passed over to defendant 1 after the sale-deed Ex. A 1, such right was given up and only by the agreement defendant 1 was allowed to pass through the plaintiff's yard for residential purposes to the house purchased by the defendant.

It was also stipulated that the plaintiff could have the door closed whenever he liked. Therefore, the rights of the parties after the agreement Ex. 2 are governed by the provisions of the said agreement. As has been said above, the said agreement left it to the option of Har Sahai to allow defendant 1 to use the yard as a passage to his house. The door could be closed whenever the owner of the plaintiff's 'Haveli' so liked. There is no provision in the agreement saying that the passage could be stopped, and the door closed only when the defendant opened another door to his house. The admissions that have been made by the plaintiff's predecessors-in-interest in the sale-deeds executed by them are rebutted by the provisions of Ex. 2, and have no binding effect. Moreover, it appears that probably those admissions were made without reference to Ex. 2 on some hearsay information. I do not think that the plaintiff lost his right which the owner of the 'Haveli' had under the agreement simply on account of the admissions of his predecessors-in-interest in the sale-deeds.

11. A licence can be revoked at the will of the licensor unless it is coupled with a transfer of property, and such transfer is in force, or the licensee, acting upon the licence, has executed a work of a permanent character, and incurred expenses in the execution, vide Section 60, Indian Easements Act. In the present case, what has been created by Ex. 2 is only a licence, and it is neither coupled with a transfer of property, which is in force, nor has the licensee acting upon the licence executed a work of permanent character and incurred expenses in the execution. The licence could, therefore, be revoked by Harsahai, who granted it. He having not chosen to revoke it, his transferees are as much entitled to revoke it as was Har Sahai. The plaintiff was, therefore, clearly entitled to revoke the licence, and call upon the defendant to close the door and not to use his yard for the purposes of ingress and egress to his house.

12. The appeal is allowed, and the decrees of the lower Courts are modified in that the plaintiff's suit is decreed for permanent injunction restraining the defendants from passing through the 'chauk' of the plaintiff's house given in para 1 of the plaint, and from interfering with the plaintiff's closing of the door between the two houses. This injunction shall take effect at the expiry of two months from today. In the meanwhile, the defendants may open a door to the house of defendant 1 in some other direction. For this period of two months, the defendants shall be entitled to pass through to 'chauk' in question for residential purposes only and for no other purpose. As the primary relief prayed for by the plaintiff has been granted, no question of the alternative relief arises. The plaintiff shall get his costs throughout from the contesting defendant. The cross-objections are automatically dismissed with costs.


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