J.P. Jain, J.
1. This is defendant's second appeal against whom respondents' suit for injunction has been decreed in part by the Munsiff-Magistrate. Behror by his order dated August 9, 197l, and upheld by the Additional Civil Judge, Alwar vide his order dated November 27, 1972.
2. Ramavtar, Ram Swaroop and Rama Kant, sons of Nanag Ram instituted a suit against Sayam Lal in the Court Munsiff Behror alleging that they belong to one family, and they have their houses in Mohalla Mishran, village Behror. The property has been shown in Ex. 1 placed on record by the plaintiffs. According to them, 'chowk' shown as 'A' belongs to the plaintiffs, whereas 'chowk' 'B' belongs to the defendant Shyam Lal, and it is demarcated by a stone slab marked 'J'. It has further been alleged that 'chabutra' 'C' falls within the 'chowk' 'A, and it belongs to the plaintiffs, and their ancestors. According to them, to the east of this chabatra' is the defendant's house, and there is spout Z', which falls on the 'chabutra' 'C, but it was wholly meant for the discharge of rainy water. For some time, the defendant has made it for personal use, and the discharge of dirty water from that spout, which has made the 'chabtra 'C not possible fur any use to the plaintiffs. It was also alleged that another spout 'Y' has been opened towards the 'chabutra', and it discharges water on 'chabubra' 'C. With regard to this item, it has been prayed that spout 'Y' be closed and as for spout 'Z' the defendant should be restrained from using same for any purpose except for discharging rainy water. It has also been the case of the plaintiff that the window 'X' has been newry constructed, and the Chhaja (Jhap) 2' in width has been consrueted over it They have also claimed the closure of the window, and the removal of the chhaja. Another averment in the plaint is that the plaintiffs have right of passage through the defendant's 'poly' 'E' 'chowk' 'I' and staircase 'F' to reach the roof of 'poly' 'D'. According to them, they have been using this passage from the time of their ancestors. They have prayed for rerpetual injunction against the defendant restraining him not to interfere with their right of passage through his 'poly', 'chowk' and staircase referred to above.
3. The plaintiffs' suit was contested by the defendant Shyam Lal by him written statement dated 14/7/86 It was conteded by him that the plaintiffs have no share in the 'chowk'. He also denied the ownership of 'chabutra as alleged by the plaintiffs. It as equally controverted that the plaintiffs bavt any right of passage through his 'poly' 'E', 'chowk' 'I' and staircase '(sic)'. According to the defendant, the 'poly' 'D' is not the property of the plaintiffs. The defendant owns his house, and the 'chowk' upto line RQS shown in the map Some time back, the lncestors of the plaintiffs allowed the father of the plaintiffs to open his right of way to his Haweli, which is situated beyond the line RQS towards the south According to him. the plaintiffs have a right of passage from the south, and it was only as a matter of concession that Nanag Ram, the father of the plaintiffs, was permitted to open a way from his chowk' and the 'poly', which was once used as 'tatkhana' of the defendant.
4. The learned trial Court framed 11 issues on 19.8.66 Issut No. 10A was added on 29-1-71 Two other issues i.e. 1A. and 5A were added by his order dated 12-4-71. Thereafter, the parties to the case adduced evidence in support of their contentions. No. documentary evidence was produced by either of them The learned trial Judge after having considered the evidence held that 'chowk' 'A' belongs to the platiffs; 'poly' 'D' fals in the ownership of the plantiff ; chowk' 'B' forms per of the share of the 'chowk' of the defendant and the stone-slab 'J' divided the two 'chowks' not tonally. Ha also fouad that the plantiffs have a right of passage through the plaintiffs' 'poly' 'E', 'chowk' 'I' and staircase 'F' He, however, did not accept the plaintiffs' case with repard to the window, as it was construced within the defendant's own land He ordered the removal of the 'chhaja' (jap). Use of spout 'Z' was restricted to the descharge of rainy water, and as regards spout 'Y', it was ordered that it should be used in a manner as not to allow the rainy water fall on the 'chowk. In this manner, the trial Judae dcreed the Plaintiff' suit Being gagged of the decree, the appellant fied an appeal. This was dealt with by the Additional Civil Judge Alwar. He agreed with the view taken by the learned Judge, and dismissed the appeal with costs It is against this decree that Shyam Lal has come in this Court.
5. Learned Counsel appearing on behalf of the appellant has raised the following contentions:
1. That the entire 'chowk' belongs to the defendant In this connection, it was also submitted that the plaintiffs had a right of passage from 'poly' D' with the permission of the defendant's grand-father Tota Ram.
2. That the plaintiffs have no right of way from 'poly' 'E' 'chowk' 'I' and staircase 'F'. It was also urged that the basis of the plaintiffs' claim bad no foundation in law. He referred to Section 13 of the Indian Easement Act.
6. On the other hand, Mr. Tata appearing on behalf of the respondents, supportted the finding of the lower Court. It was argued by him that the plaintiffs have a 'nohra' towards the west of the detet dant's house, and it also opens towards the 'chewk' It was further submitted that 'chabutra' 'C' falls in 'chowk' 'A' 'Chowk, 'B' belorgs to the defendant But in a part of the 'chowk' Shyam Lal has made a room, and has there by redused its length.
7. I have considered the rival contentions. Learned Counsel for the parties took me through the evidence no which they wanted to place reliance in support of their contentions. Mr. Gayal, in support of his contention, placed reliance on the insoection note dated 29-3-71 recorded by the Munsiff after site inspection Ha called my attention to two facts : one is that the wail QS appeared to the Mansiff to be of double 'asar'; and that the plaintiffs' house was built with only one 'asar'. The other part of the 'asar' was not constructed. Secondly reference was mada to 'Jai' commencing from the house of the defendant and going right upto point in the map. On this premise, he argued that the property in which 'poly' 'D' is situated seems to be belonging to the defendant, and in any case it could not be of the plaintiff. He also referred to the statement of Shyam Lal DWL, who stated that his grand-father Tota Ram gave permission to Nrnag Ram some 30 years back to open a way for his Haweli from the 'poly' 'D'. Learned Courts below did not accept the story of the defendant that any permission was given by Tota Ram to Nanag Ram, Ram, father of the plaintiff, to open his 'darvaja' through 'poly 'D' for his Haweli, which is situated towards its south. In my opinion, the conclusion of the learned Courts below is correct. I have carefully gone through the statement of Shyam Lal DW 1. In the examination in chief he only stated that some 25 30 years back, the plaintiffs were permitted to make their way from towards the 'chowk'. He did not say that it was done in his presence. But in the cross-examination he added that Tota Ram granted permission in his presence. According to him, 'poly' 'D' was previously the 'ratkhana' of the defendant's ancestors. When he was asked, whether the permission was reduced into writing, or was got executed by the plaintiffs father, he stated that he did not remember. He rather stated that he was child of about 20-22 years. He did not remember in whose presence this permission was granted. Reference has also been made to the other witnesses but none of those witnesses stated that the aforesaid permission was granted by Tota Ram in his presence. The source of their information is only Shyam Lal. I have already discussed that Shyam Lal's statement in this regard cannot be accepted Apart from this, this fact was not stated in the written statement that the plaintiffs have a right of way through the 'chowk' on account of some permission having been granted to their father by some ancestor of the defendent. It has rather been admitted by the defendant that the plaintiffs have been using this 'chowk' for more than 30 years. The existence of 'jai' and the signs of having a second 'asar' towards the north of the wall OS are not sufficient to establish that the 'poly' 'D' belonged to the defendant's ancestors at one time. That apart, it has not been disputed that the plaintiffs have their 'nohra' towards the west, and it also opens towards 'chowk' 'A'. All these circumstances have been taken notice of by the Courts below, and they rightly concluded that the 'chowk' 'A' belongs to the plaintiffs and 'chowk' 'B' belongs to the defendant. The stone slab 'J divides the two 'chowks' notionally. That being so, the 'chabutra' 'C' falls in 'chowk' 'A', and as such, the use of the 'chabutra' clearly establishes that this belongs to the plaintiffs. In the absence of cogent and convincing evidence that the 'poly' 'D' was at one time the 'ratkhana' of the defendant's ancestors, and it belonged to them and Tota Ram permitted the use of the 'ratkhana' with a right to open a 'darwazi' to Nanag Ram it is difficult to accept the version of the defendant. I do not, therefore, find any good reason to interfere with the findings of the Courts below in this tegard.
8. Now coming to the second contention, the argument of Mr. Gnyal is not without substance. The plaintiffs claimed the right of passage from 'poly' 'D' through 'chowk' 'I' and staircase 'F' to reach the roof of 'poly' 'D' on the ground of easement of necessity. The learned Courts below did not appear to have applied their minds to the provisions contained in Section 13 of the Indian Easement Act. According to the plaintiff Ramavtar, he is not aware as to who constructed the 'Haweli' that belongs to him, and the one that belongs to the defendant Shyamlal, though the parties belong to one family. It is not the case of the plaintiffs that the entire property i.e. plaintiffs' house and that of the defendant was one single unit, and it was at one time partitioned amongst the ancestors. As a matter of fact, in the witness box, Ramavter stated that Haweli of the plaintiffs and that of the defendant was constructed by their respective ancestors. He pleaded ignorance as to who constructed them. He further admitted that 'poly' 'D' is without a roof for at least 15 or 20 years, though, according to the defendant, it is without a roof for nearly 50 years. In this view of the matter, it is difficult to sustain the ealement of necessity. Section 13 of the Indian Easement Act reads as follows:
13. Easement of necessity and quasi-easements:
Where one person transfers or bequeaths immovable property to another-
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement : or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor, or the legal representative of the testator shall be entitled to such easement ; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representsave of the testator, shall unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons--
(e) If an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, in Clauses (a) (c) and (e) are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purposes of this section, to be deemed, respectively, the transferor and transferee.
9. According to this section an easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into two or more separate and distinct tenements and any of these tenements (whether transferred or recovered) is so situated that it cannot be used at all without the enjoyment of a certain privilege on any other of such tenements. In such circumstances, law presumes the implication of a great or reservation of such a privilege in favour of the person holding the tenement. Where it is neither party's case nor is there any evidence that certain plots ever constituted a single unit, and as a result of subsequent transfer, bequest or partition one of the Units on account of its situation was deprived of user without enjoyment of the privilege i e. a right of way over other unit, the grant of such privilege is illegal.
10. Mr. Tatia learned Counsel appearing on behalf of the respondents, could not point out as to how his clients could claim a right of way through the defendant 'poly' 'E' to teach his Haveli. In this view of the matter, the finding of the learned Courts below in this regard cannot be sustained. The plaintiffs cannot be permitted to use the defendant's blouse for reaching the roof the 'poly' 'D's which too is without roof, which means that they have not been using this right of passage for at least 20 years. It has also been urged by Mr. Goyal that the spout 'Z' could not have been restricted for discharging the rainy water. He has referred to the statement of PW/4 Matadeen. This statement alone does not help the defendant, According to this witness also, the room on the first floor was consttucted only 12 months back, and as such, it is difficult to accept, that spout 'Z' was a permanent spout, and not one for discharging only rainy water. The finding of the Courts below on the appreciation of the evidence of both the parties is correct, and I affirm the same.
11. In the result, the appeal is partly allowed. The plaintiffs' suit with regard to passage through 'poly' 'E', 'chowk' 'I' and staircase 'F' is dismissed. The decree of the Court below in this regard is set aside. Rest of the decree is maintained In the circumstances of the case, I direct that the parties will bear their own costs throughout.
12. On behalf of the respondents, leave to appeal to Division Bench is prayed. There is no substance in this request, which is accordingly rejected.