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Sailendranath Sadhukhan and anr. Vs. Chhotelal Shaw and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 42 of 1964
Judge
Reported inAIR1970Cal449,74CWN869
ActsEasements Act, 1882 - Section 13
AppellantSailendranath Sadhukhan and anr.
RespondentChhotelal Shaw and ors.
Appellant AdvocateJitendranath Guha and ;Padmabindu Chatterji, Advs.
Respondent AdvocateA.K. Motilal and ;Dhruba Kumar Mukharji, Advs.
DispositionAppeal dismissed
Excerpt:
- .....by the added defendant.3. as already observed, the only point for consideration is whether the right claimed is an easement of necessity. the original two holdings nos. 71 and 72 belonged to the same person. holding no. 71 was leased out in the year 1894 to the defendant's predecessor. holding no. 72 was retained by the owner (landlord). it has now been acquired by the plaintiffs and the basic title claimed is on the basis of a lease from the same landlord. the question is whether, having regard to the situation and configuration of the two holdings, the disputed right can be claimed as an easement of necessity.4. it is well established, on the findings of the courts below, that, from holding no. 72, there is no outlet for discharge of water except through the disputed drain in.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by the defendant (added defendant) under Clause 15 of the Letters Patent against a judgment of our learned brother R. N. Dntt, J. The appeal arises out of a suit for declaration of the plaintiffs' right of easement for discharging water from their holding No. 72 of the Municipality of Howrah through the appellant's holding No. 71 and for an appropriate injunction.

2. The claim is a claim of easement of necessity and, although there was also another ground, namely, of implied grant, the first appellate Court has rightly pointed out that the case of implied grant cannot exist apart from easement of necessity in the circumstances of this case. All the three Courts below have decreed the plaintiffs' suit and, against their concurrent decision, the instant appeal has been filed by the added defendant.

3. As already observed, the only point For consideration is whether the right claimed is an easement of necessity. The original two holdings Nos. 71 and 72 belonged to the same person. Holding No. 71 was leased out in the year 1894 to the defendant's predecessor. Holding No. 72 was retained by the owner (landlord). It has now been acquired by the plaintiffs and the basic title claimed is on the basis of a lease from the same landlord. The question is whether, having regard to the situation and configuration of the two holdings, the disputed right can be claimed as an easement of necessity.

4. It is well established, on the findings of the Courts below, that, from holding No. 72, there is no outlet for discharge of water except through the disputed drain in Holding No. 71. It is apparent, accordingly, that, apart from this disputed drain, Holding No. 71 would have no outlet for discharge of water to the Municipal drain.

5. Mr. Guha, arguing this appeal on behalf of the defendant-appellant, raised a contention that in order to support the claim of easement of necessity, it must be established by the party, claiming it, that the property, for which this easement is claimed, cannot be enjoyed or used at all without this right of easement. He contends that it must be absolutely necessary for the use or enjoyment of the particular property, or, in other words, that, without it the said property cannot be used or enjoyed at all. We need not dispute the suggested test, but in our view, the proper meaning of the above test will be that the user contemplated is 'effective user', although it is different and distinct from convenient or reasonable user. On the facts, found by the three Courts below in the instant case, the position is clear that, havinp regard to the situation and configuration of Holding No. 71, it cannot be effectively used without this right of easement. It is impossible to conceive an effective user of a property for residential purpose in a Municipal town without an outlet for discharge of its water to the Municipal drain. From that point of view, the right claimed would be necessary for the user and enjoyment of the disputed property in Holding No. 71 and would, accordingly, satisfy the test, put forward by Mr. Guha himself.

6. Before concluding this judgment, we deem it necessary to mention the decisions, cited before us by the two parties, namely (1912) 36 Cal LJ 417, AIR 1921 Cal 231 and : AIR1960Cal592 , cited by Mr. Guha and (1890) ILR 14 Bom 452 and (1964) 2 All ER 119, cited by Mr. Motilal. We do not, however, think that any useful purpose will be served by adverting to the discussions in the above two sets of cases, except stating that they lay down the general principles, applicable to cases of easement of necessity. As a matter of fact, in the English case cited, the test of necessity has been laid down with reference to user of the property and the surrounding circumstances and that suffices for our present purpose. We may also add that, although Mr. Guha contended that, of easement or necessity, there are only two varieties, -- right of way and right of support, -- his contention would be opposed even to the authority cited by him, namely, Gale on Easements, Thirteenth Edition, p. 87, where the learned author or commentator makes inter alia the following observation:

'The exceptions to the prima facie rule (that no grant or reservation can be implied in favour of the owner or in favour or the grantor) have never been exhaustively stated',

which, obviously, means that easements of necessity have never been exhaustively mentioned or enumerated, although the two familiar instances are right of way and right of support.

7. We would, accordingly, dismiss this appeal. There will be no order as to costs.

A. K. Mookerji, J.

8. I agree.


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