S. Kumar and Ors. Vs. S. Ramalingam - (Supreme Court) (16 Jul 2019)

Right to use passage granted in sale deed will not terminate in terms of provisions of Easements Act

MANU/SC/0913/2019

Property

In present matter, the Defendants are in appeal aggrieved against the judgment and decree passed by the High Court, whereby judgment and decree passed by the First Appellate Court was not interfered with in the second appeal. The Plaintiff-Respondent filed two suits, firstly, claiming an injunction against the Defendants from using a pathway shown as A B C D in the plaint and claiming exclusive right to use the said path. Another suit was filed restraining the Defendants from preventing the Plaintiff from using the pathway to reach their land E F G H.

The learned trial Court dismissed the suits holding the Defendants have right of necessity of access to their property over the pathway A B C D in the first suit. However, the First Appellate Court allowed the appeal and granted injunction as prayed holding that, there is no necessity of easement as the said Defendant has access from the property of her husband. The High Court has maintained the judgment and decree of the First Appellate Court.

The relationship of Defendant Nos. 1 and 2 will not negate the grant of easement right of passage granted to her in the sale deed only because the recital is generic in nature and usually put by the deed writers. Once the land has been sold with the right of access through the land adjoining the property sold, such right could not be exclusively conferred to the Plaintiff in the sale deed dated May 31, 1988.

Section 48 of the Transfer of Property Act, 1882, provides that, where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. Since the right of access to Defendant No. 2 was reserved in the sale deed dated April 1, 1976, therefore, the vendor could not confer exclusive right to the Plaintiff vide sale deed dated May 31, 1988.

The Plaintiff has to maintain the 16 feet wide passage in any case in terms of the recital in his sale deed dated May 31, 1988. Therefore, if the Defendant No. 2 or her transferees use the passage, then such use of passage by Defendant No. 2 or her transferees cannot be said to be causing any prejudice to the Plaintiff.

The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the Defendants to use the passage adjacent to their land only because the Defendant No. 2 has gifted part of land to Defendant No. 1 or that after the death of both the Defendants, the common legal proceedings inherited the property.

The Appellants have been granted right to use passage in the sale deed. Thus, it is not easement of necessity being claimed by the Appellants. It is right granted to Defendant No. 2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act, 1882.

In view thereof, the judgment and decree passed by the High Court suffers from manifest error and, thus, cannot be sustained in law. The passage adjoining the property of the Defendants leading to the property of the Plaintiff is reserved for the common use of Defendant No. 2 and of the Plaintiff. Accordingly, the appeals are allowed.

Tags : EASEMENT NECESSITY RIGHT