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Kristnamrazu Vs. Marrazu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1905)15MLJ255
AppellantKristnamrazu
RespondentMarrazu
Cases ReferredWutzler and Anr. v. Sharpes I.L.R.
Excerpt:
- - the law of england as to the cases in which a person can claim an easement of necessity so as to give him a right of way over another man's land is now well settled and there is nothing to indicate that the indian legislature intended to adopt a different principle. the respondent failed to establish any right by agreement......lower courts. we think the word ' necessary' must be construed in its ordinary sense. if a has a means of access to his property without going over b's land, a cannot claim a right of way over b's land on the ground that it is the most convenient means of access. the law of england as to the cases in which a person can claim an easement of necessity so as to give him a right of way over another man's land is now well settled and there is nothing to indicate that the indian legislature intended to adopt a different principle. in the bombay cases of esu bai v. damodar ishwaradas i.l.r. 16 b. 569 and the municipality of the city of poona v. vaman rajaram gholop i.l.r. 19 b. 797 a suggestion was made that the question of convenience might legitimately be considered, but there is no.....
Judgment:

1. In this case we are of opinion that clause (e) of Section 13 of the Indian Easements Act 1882, does not admit of the construction which has been placed upon it by the lower Courts. We think the word ' necessary' must be construed in its ordinary sense. If A has a means of access to his property without going over B's land, A cannot claim a right of way over B's land on the ground that it is the most convenient means of access. The Law of England as to the cases in which a person can claim an easement of necessity so as to give him a right of way over another man's land is now well settled and there is nothing to indicate that the Indian Legislature intended to adopt a different principle. In the Bombay cases of Esu Bai v. Damodar Ishwaradas I.L.R. 16 B. 569 and The Municipality of the City of Poona v. Vaman Rajaram Gholop I.L.R. 19 B. 797 a suggestion was made that the question of convenience might legitimately be considered, but there is no decision by the Courts of this country that this criterion is convenience and not necessity. The case of Wutzler and Anr. v. Sharpes I.L.R. 15 A. 281 is an authority for holding that the test under the law of this country is the same as under the English Law. To adopt the view contended for by Mr. Swaminadan would be to recognise a right by way of easement in the nature of an easement of convenience. It is admitted that the respondent has a means of access to his property without going over the appellant's land and we must, accordingly, hold that he had no easement of necessity. He is not entitled to an easement under clause (f) of the section since the easement which he claims is not apparent and continuous. The respondent failed to establish any right by agreement. The District Judge was right in holding that oral evidence of an alleged agreement was inadmissible and the partition-deed whilst it makes special provision for giving means of access to various portions of the partitioned property is silent as to any means of access over the appellant's share which is claimed by the respondent in this case. It is unnecessary to consider whether the respondent did not surrender any rights which he may have had by the agreement which is embodied in Exhibit C, but we may observe that the evidence to show that Exhibit C was obtained by coercion-especially having regard to the fact that the consent mentioned in Exhibit C was given by the elder brother to the younger in the presence of three mediators--is extremely slender.

2. We must set aside the decrees of the lower courts and grant the injunction asked for in the plaint. We do not think it is a case for damages. The respondent must pay the appellant's costs throughout.


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