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Sohan Lal and anr. Vs. Smt. Manohar Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 213 of 1966
Judge
Reported inAIR1973Raj160; 1972()WLN894
ActsEasements Act, 1882 - Sections 15 and 33
AppellantSohan Lal and anr.
RespondentSmt. Manohar Bai and ors.
Appellant Advocate Hastimal, Adv.
Respondent Advocate Sumderchand, Adv.
Cases ReferredJamna Das v. Gulraj
Excerpt:
.....right of way over the defendants' property. our own high court held it so in 1959 rlw 127. the contention of the defendants further is that the plaintiffs have failed to prove by means of evidence that with the closing of the alleged window (door), there will be substantial loss in the quantity of air and light coming in the medi. the plaintiffs having failed to prove substantial damage in respect of light and air are in my opinion not entitled to any decree in respect of light and air. one has to look to the other proved circumstances of the case as well. therefore, i am satisfied that the closure of the window would result in substantial loss of air and light to the plaintiffs......the defendants (plaintiffs?) to have pleaded and proved that they had exercised their so-called right of easement of way within two years of the institution of the suit and this the defendants (plaintiffs?) had not beensuccessful in proving. 11. i may read relevant portion of the judgment of the learned district judge in this connection: 'it has, however, come on record that the plaintiffs raised a stair-case in or aboutst. 2003 or 2004 in their shop and that stair-case leads to this medi separately and as such the contention of the defendants is that the plaintiff being not at all in the need of old passage, the easement of way which is an easement of necessity has extinguished, more so, because the plaintiffs have not used it for the last many years. the question is whether the.....
Judgment:

Kan Singh, J.

1. This is a defendants'second appeal arising out of an action for enforcement of certain rights of easement in respect of a 'Medi' fan apartment in the upper storey) and directed against the appellate judgment and decree of the learned District Judge. Bhilwara dated 27-1-1966.

2. The parties were neighbours andwere living at Bhilwara. The plaintiffs have their shop marked A in the site plan attached to the plaint. On the roof of this shop the plaintiffs have their 'Medi' marked B. On the back side of the shop is the 'Gwadi' or house of the defendants. It is plaintiffs' case that their ingress to the 'Medi' lies through the defendants' 'Gwadi' from over the staircase marked E and the open space on the roof marked DH. The wav is shown as MN in the map. The plaintiffs' case further was that there was a door on the western side of the 'Medi' which abutted the open space on the roof DH. The plaintiffs proceeded to say that this door existed for the last 60 years and they were getting light and air to the 'Medi' through this opening also. Then the plaintiffs claimed that there was a spout in the 'Medi' from under the door and there were two spouts on the roof of the 'Medi' and the plaintiffs had acquired easement of discharging water through these three spouts. These spouts, according to the plaintiffs existed for almost 45 years or so. Theplaintiffs' grievance was that some 2 3/4 months before the filing of the suit the defendants had dismantled the staircase marked E and were raising construction upon the open roof; thereby the defendants had interfered with the plaintiffs' light of passage and were threatening to frustrate their right to have light and sir through the door by raising construction as to close the same. Regarding the spouts they averred that they were also closed. The plaintiffs, therefore, prayed for an injunction restraining the defendants from raising any construction just near the 'Medi' so as to close the door facing west and for a mandatory injunction commanding the defendants to continue the passage for the 'Medi' as it was through the staircase and the open space on the roof. An injunction for restraining the defendants from closing the spouts was also prayed for.

3. The defendants denied the plaintiffs' claim in toto. They denied that there was any door in the plaintiffs''Medi' as alleged or that there was any passage or that they had any right of passage to the 'Medi' through the defendants' house and the staircase. As regards the two spouts the defendants averred that formerly the 'Medi' was'Kacha' and there were no spouts at all but when the 'Medi' was made 'Pucka' some 16 to 17 years back during the absence of the defendants they had constructed the two spouts on the roof. They further stated that while reconstructing the 'Medi' the plaintiffs had opened a window at the height of 5 feet from the roof and the third spout was constructed at that very time. The defendants' case further was that for the last 30 years the plaintiffs had no ingress to the 'Medi' through the defendants' house. Then it was averred regarding light and air that the plaintiffs were setting sufficient light and air through the eastern door of the 'Medi'.

4. The trial Court framed a number of issues. It recorded the evidence of the parties and then held: (1) that there was a window on the western side of the 'Medi' and not a door and further that the window existed for more than 44 years; (2) regarding the right of passage through the defendants' property it was mentioned in sale deed Ex. 2 that this passage lay through the staircase. However, at the time there was no staircase end it was not clear from the evidence how many years before the institution of the suit that staircase was demolished; (3) there was a separate staircase for access to the 'Medi' from the eastern side in the extreme corner of the southern wall of the plaintiffs' 'Medi' and it opened on the main road. This passage was independent one and one need not pass over anybody else's property in going to the 'Medi' from theeastern side. This staircase on the eastern side existed since Samvat year 2004 or 2005 and the plaintiff was using the same; (4) The plaintiffs had stopped using the staircase at E since Samvat year 2004 or 2005. The conclusion of the learned Civil Judge may in his own words, be put thus:

'In view of the above facts even though the plaintiff had acquired the right of way through defendants' Guadi by prescription, but the continuity of right of way is broken by plaintiff himself for a considerable period from Samvat 2005. The Section 38 of the Indian Easements Act clearly provides that an easement is extinguished when the dominant owner releases it expressly or impliedly to the servant owner. Here the plaintiff has already constructed another staircase for the use of his Medi in Samvat 2005 and the plaintiff is constantly using that staircase for the beneficial enjoyment of his property for a long time as his own witness Jawarilal says. In these circumstances, the pre-existing right of way will be deemed to have been released either expressly or impliedly by the plaintiff and therefore it cannot be revived in this suit.'

5. Regarding the easement of light and air through the window it was held that the easements had been perfected for more than 20 years as the window existed for not less than 44 years in any case. Further this was exercised for more than 20 years peaceably and without interruption. Thus, the right to receive light and air through the disputed window for the requisite period was found to have been established. Regarding the spouts the learned Civil Judge held that their existence was proved only for 16 or 17 years at the most and, therefore, it could not be said that the plaintiffs had acquired the right of discharging water through these spouts. The Court further found that the defendant had constructed his house upto the second storey leaving the roof just connected with the disputed window over which no construction had been raised so far.

6. In the result, the learned Civil Judge passed a decree in favour of the plaintiff restraining the defendants from constructing any wall in front of and adjacent to the existing window in the 'Medi' facing towards the west abutting the defendants' roof. The defendants were, however left free to raise any construction over their roof provided an open sky of 45 degrees or more was left for receiving sufficient light and air for the dominant tenement. In other words, the construction of wall opposite to the window was not be raised to a height greater than the perpendicular distance between the site of the window and the obstructions. The plaintiffs' suit was dismissed regarding the other reliefs.

7. The plaintiffs made grievance of the refusal of the relief regarding their right of passage through the stair-case and the roof for reaching the 'Medi' as also for the dismissal of their suit qua the three spouts. The defendants, on the other hand, made grievance of the decree concerning the obstruction of light and air through the window. Aggrieved by the judgment and decree of the learned Civil Judge both the parties, therefore, filed appeals to the Court of the District Judge Bhilwara. The learned District Judge allowed both the appeals in part.

8. The learned District Judge allowed the plaintiffs' appeal regarding the right of passage holding that the right of passage had been established and as the defendants had not pleaded the extinguishment or release of the right the same would be taken to be subsisting. He, however, disallowed the prayer regarding the three spouts. The learned Judge allowed the defendants' appeal and reversed the decree of the learned Civil Judge in this behalf.

9. The defendants have, in the circumstances, come to this Court in second appeal and the plaintiffs have filed their cross-objections regarding their easementary rights in respect of the three spouts as also for the light and air through the disputed window. I may first take up the defendants' appeal.

10. Learned counsel for the defendants-appellants submitted that according to the finding of the trial Court the staircase 'E' had not been used by the plaintiffs since Samvat year 2004 or 2005. It had further held that the window on the western side which was 4 ft. x 2 1/2 ft. in dimensions and about 5 ft. high from the roof of the defendants existed since Samvat 2004 or 2005 and thus it was clear that there was no door for ingress to or egress from the 'Medi' abutting the defendants' roof DH. Thus, according to learned counsel, there was no question of any extinguishment or release of any easementary right as held by the learned District Judge, but non-establishment of the right itself in accordance with Section 15 of the Easements Act when the prescriptive period of 20 years did not end within two years next preceding the institution of the suit. Learned counsel maintained that it was for the defendants (plaintiffs?) to have pleaded and proved that they had exercised their so-called right of easement of way within two years of the institution of the suit and this the defendants (plaintiffs?) had not beensuccessful in proving.

11. I may read relevant portion of the judgment of the learned District Judge in this connection:

'It has, however, come on record that the plaintiffs raised a stair-case in or aboutSt. 2003 or 2004 in their shop and that stair-case leads to this Medi separately and as such the contention of the defendants is that the plaintiff being not at all in the need of old passage, the easement of way which is an easement of necessity has extinguished, more so, because the plaintiffs have not used it for the last many years. The question is whether the defendants can be allowed to argue on this basis, when the alleged extinguishment of the easement of the right of way has not been pleaded, when the plaintiffs have not filed any reply in respect of that and when no issue has been framed. If the defendants were really desirous to fight the case on this point, it was in my opinion, incumbent upon them to have alleged these facts. As the record stands, I am of opinion that the defendants are not entitled to avail of the provisions of Section 38 of the Easements Act, because the question of releasing an easement expressly or impliedly is always a question or fact, which is to be pleaded first.

12. It will thus appear that the point that arises for consideration is whether it was for the defendants (plaintiffs?) to have proved the alleged enjoyment or their right of passage for 20 years ending within the next two years preceding the filing of the suit. I may read Section 15 of the Easements Act:

'Section 15. Acquisition by prescription.-- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,

and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years,

and 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 and use of light or air, support, or other easements, shall be absolute.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

Explanation I.--Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.

Explanation II.--Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof, and of the person making or authorising the same to be made.

Explanation III.--Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.

Explanation IV.--In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.

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 word 'thirty years' were substituted.'

13. The first three paragraphs of this section lay down the period during which an easement should be enjoyed in order to ripen into a prescriptive right. The fifth paragraph lays down how that period is to be counted when a suit is instituted. This indicates that the prescriptive period of enjoyment should thus have continued right upto or ended within two years next before the institution of the suit. This fifth paragraph would operate only when the right is the subject-matter of litigation. Therefore, whenever we have to examine the question in a suit it will have to be shown that the right was enjoyed upto within two years next before the institution of the suit otherwise for how long soever the easement may be enjoyed the right would not be taken to have ripened at the time of a contest in a law Court, if its enjoyment had ceased before the prescribed period of two years. Whatever may be the length of the time during which the easement may have been enjoyed, it would be of no avail in the subsequent claim for easement if the condition laid down in the fifth paragraph is not satisfied. Therefore, it was the duty of the plaintiff to have proved the enjoyment of the easement within two years next preceding the institution of the suit. Learned counsel for the respondents puts emphasis on the language of Explanation II, He argued that there could be no interruption unless there was an actual cessation or the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant had notice thereof. Learned counsel took the position that merely because the plaintiff had an independent staircase of his own for reaching the 'Medi' from the eastern side it cannot be said that there was cessation of the enjoyment. He maintained that mere non-user of the staircase E was not tantamount to cessation of enjoyment within themeaning of the section. In this regard learned counsel drew attention to the averments in the plaint wherein it had been said that the defendants had demolished the staircase E some 23/4 months before the filing of the suit. This, according to learned counsel, had not been specifically denied by the defendants.

14. Now, it is a question of fact depending upon the facts and circumstances of each case whether non-user of an easement would result in cessation of the enjoyment within the meaning of the section or not. In Gajraj Singh v. Ram Sahai, AIR 1940 Oudh 197, the learned Judge observed:

'Under Section 15 there are two requirements to be fulfilled: first the enjoyment must be up to within two years of the date of suit and secondly that upto that time it must have been enjoyed for 20 years and without interruption. The period of enjoyment up to within two years of the suit need not be a period of actual user up to the last moment, provided one can hold that the absence of user does not amount to absence of enjoyment: whether it does or does not, depends on the facts of the particular case,'

This above passage would indicate that there is a distinction between the enjoyment of an easement or absence of user as such. The underlying concepts overlap substantially and yet they are not exactly identical. There is a distinction between enjoyment of an easement and non-user. No doubt, this may very well apply markedly in cases of easements which are seasonally or periodically exercised. Therefore, the Court has to arrive at a conclusion bearing in mind the facts and circumstances of the case in hand. There is, firstly, the plaintiffs' own witness P.W. 4 Jawari Lal who had clearly stated that ever since the staircase on the eastern side was made, the plaintiffs had not been using the defendants staircase, i.e., E. Therefore, it is a case where for a pretty long time almost for 15 years the staircase E had not been used by the plaintiffs. Then also at present what existed was a window and not a door; the dimensions being 4 ft. X 2 1/2 ft. This again is another indication for showing that there would be no passage through the window. In the circumstances I am satisfied that in the present case non-user and cessation of enjoyment would be the same thing. Therefore, it was not a case in which Section 38 could legitimately be resorted to. Section 38 deals with the question of extinction of an easement when the dominant owner releases it expressly or impliedly to the servient owner. It presupposes a voluntary act on the part of the dominant owner. Whenever an easement is the subject-matter of a contest in a suit it is for the party claiming the easement to establish that it was enjoyed upto a period ending within two years next before the institution of the suit, Thus, in my view, the learned District Judge was in error in holding that the plaintiffs had a subsisting right of way over the defendants' property. In the circumstances the defendants' appeal has to be allowed.

15. Now, I may turn to the plaintiffs' cross-objections. The question regarding the three spouts need not detain me long. Perusal of the judgment of the learned District Judge shows that the learned counsel for the plaintiffs in the Court below had not pressed the appeal regarding the spouts on the roof. Regarding the third spout in the 'Medi' itself the learned District Judge held that it had not been established that it had existed for the requisite period of 20 years. Thus, regarding this third spout there is a concurrent finding of fact of both the Courts. Therefore, there is no force in the cross-objection regarding the three spouts.

16. I may next turn to the question of the right of light and air through the window. The learned District Judge had refused relief to the plaintiffs regarding light and air because, in his view, the plaintiffs had not proved substantial loss in the quantity of air and light coming to the 'Medi' through the window on the western side. I may read the relevant portion of his judgment:

'Coming to the cross-appeal of the defendants, the contention of the defendants' learned counsel is that unless the plaintiffs prove a substantial damage of light and air, injunction to restrain the construction interfering in easement of light and air cannot be granted. Our own High Court held it so in 1959 RLW 127. The contention of the defendants further is that the plaintiffs have failed to prove by means of evidence that with the closing of the alleged window (door), there will be substantial loss in the quantity of air and light coming in the Medi. I have gone through the entire evidence of the plaintiffs and have come to the conclusion that there is no iota of evidence at all as to what will happen if this door or window in the western wall of the Medi is closed. The plaintiffs having failed to prove substantial damage in respect of light and air are in my opinion not entitled to any decree in respect of light and air.'

Learned counsel for the respondents in assailing this part of the judgment contends that in paragraph 7 of the plaint it was averred that the closure of the window would result in substantial loss of light and air to the 'Medi' and he points out that this averment has not been specifically denied. Apart from this, learned counsel submits that it has been established as to what is the size of the window as also the size of the room and in Rajasthan which is an area with oppressive summers, the total closure or passage of air from the west is bound to result in substantial discomfort to the dominant owner. Learned counsel for the appellants has tried to support the judgment of the learned District Judge.

17. Learned counsel for the respondents argued that the case relied on by the learned Judge namely, Mst. Dakhan Bai v. Seth Dhanraj, 1959 Raj LW 127 = (AIR 1959 Raj 144) was distinguishable. Learned counsel for the appellants cited another case Jamna Das v. Gulraj, 1951 Raj LW 461 = (AIR 1952 Raj 1) and about it also learned counsel for the respondents submitted that that was distinguishable.

15. According to learned counsel for the appellants, it is only in such cases where according to Section 33 of the Easements Act compensation could be claimed that in accordance with Section 35 of the Act an injunction could be granted by a Court subject of course to the provisions of the Specific Relief Act. Learned counsel for the respondents however, took the stand that this was a case of a threatened injury and not a case where by making of any construction the window had been actually blocked and, therefore, in the case of a threatened injury substantial loss need not be shown.

19. Now the state of the pleadings on either side is wholly unsatisfactory. Para 7 of the plaint reads as under:--

7 ;g fd gky esa izfroknhx.kusoknhx.k ds nqdku ds fiNokMs dk edku o uky djhc <+kbZ ekg gq, fxjk dj mlds ctk;u;k edku cuk;k vkSj oks jkmUM Qyh dh Nr rd cu pqdk gS vkSj izfroknhx.k ml ijnwljh eafty Hkh cukuk pkgrs gS vkSj mUgksus dgk Hkh gS fd ge nwljh eafty cuk;sxselkyk iM+k gqok gS vkSj rkehj tkjh gS ysfdu izfroknhx.k ds mijksDr edku ua- Mh-,p- dh Nr ij nwljh eafty cuk ysus ls oknh x.k ds mijksDr gdwd njoktk ukjns chpdh eafty dk o nwlhj eafty ds mij dh pkUnuh ds ukjns drbZ cUn gktk;sxs vkSjoknhx.k dk izfroknhx.k ds edku ua- Mh- ,p- ij gksdj viuh esMh tkus vkus dk jkLrkrks lnSo ls o'kksZ ls drbZ cUn gktk;xk vkSj ikuh fxjus ds ukjns Hkh tksdneh o'kksZ ls gS cUn gkstk;sxk o fut njoktk ls feyus okyh gok jks'kuh HkhcUn gkstk;xh ftlls oknhx.k dks Hkkjh uqd'kku igqpsxk ftldh iwfrZ tjs uxn esaugha gks ldrh A

Para 7 of the written statement may also be reproduced:

7 ;g gS fd /kjk 7 okn&i;=oknh Lohdkj ugh A ge izfroknhx.k dks vius dCts lqnk tk;nkn ij iw.kZr;k dkj rkehjdjkus dk vf/kdkj gS A oknhx.k dks mlesa gLr{ksi djus dk dksbZ vf/kdkj ugha gS AekStqnk lwjr esa nknhx.k ds tks rkehj cuh gqbZ gS mlls oknhx.k dh of.kZr djnhnqdku dk fdlh izdkj ls dksbZ okLrk ugha gS A

20. It is elementary that each material fact on which relief is founded has to be pleaded in separate paragraphs. Paragraph 7 shows that averments in respect of all the easements that were claimed are rolled into one. Therefore, one need not be too technical in viewing the defendants' reply to this paragraph which to say the least is ill-drafted and shows lack of skill. Therefore, I will not go by the strict language of the pleadings as such, but would be looking to the substance. It is true, none of the witnesses has said in so many words that with the closure of the window there would be substantial loss to the plaintiff, but saying this or not saying this will not by itself be decisive. One has to look to the other proved circumstances of the case as well. It is not disputed that the western wall of the plaintiffs' 'Medi' is only 8 feet in length (vide map Ex. 1, the scale of which is 1' = 8'). This 'Medi' is an apartment of small dimensions and if an opening of 4' X 2 1/2' in such a wall is closed then there is bound to be substantial diminution of air coming from the western side. Therefore, I am satisfied that the closure of the window would result in substantial loss of air and light to the plaintiffs.

21. The result is that I allow the defendants' appeal and reverse the judgment and decree of the learned District Judge regarding the right of passage. The suit shall stand dismissed in this regard.

22. I allow the cross-objections of the plaintiffs-respondents in part. While the cross-objections are dimissed regarding the three spouts, they are allowed regarding reception of light and air through the window in the 'Medi' opening on the western side and I set aside the judgment and decree of the learned District Judge in this behalf and restore that of the learned Civil Judge.

23. The parties are left to bear their own costs throughout.

24. Learned counsel for the respondents orally prayed for grant of leave under Section 18 of the Rajasthan High Court Ordinance for appeal. Looking to the facts and circumstances of the case, however I am not inclined to grant the leave. The leave to appeal is, therefore, hereby refused.


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