Case Note & Summary
The dispute arose from a civil suit filed by the original plaintiff seeking a declaration of easementary right to use a suit passage for discharge of drain water. The plaintiff had also claimed title over the lane in the plaint, and alternatively pleaded that if title were not accepted, she had acquired easementary right by long use. The trial court decreed the suit in favour of the plaintiff. The first appellate court dismissed the appeal filed by the defendants, affirming the trial court's decree. In further appeal, the High Court dismissed the suit on the sole ground that a statement in paragraph 7 of the plaint indicated the plaintiff was claiming title to the suit land, and since the plaintiff had failed to establish title, she could not turn around and claim relief on the basis of easement, relying on Chapisibhai Dhanjibhai Dand v. Purshottam (AIR 1971 SC 1878). The Supreme Court examined the plaint and noted that the plaintiff had indeed claimed title and alternatively easementary right. The first appellate judgment showed that the plaintiff had fought for title, and a Pleader Commissioner was appointed to ascertain whether the land belonged to plaintiff's plot No. 650 or defendant's plot No. 649. The claim for title may not have been accepted, but the claim for easementary right was accepted by the trial court and first appellate court. The Supreme Court framed the issue whether the plaintiff should lose altogether merely because she also claimed title while her easementary right was found acceptable. The respondent argued that the suit was non-maintainable because of inconsistent pleas, and the High Court's judgment effectively dismissed the suit on that ground. The appellant argued that since the plaintiff ultimately prayed for right of easement, she should not lose that right merely because the body of the plaint contained some assertions regarding title. The Supreme Court held that it would not be just and proper to dismiss the suit on the ground of non-maintainability. Although a plea of non-maintainability is a question of law, allowing it to be raised for the first time in the last court after the defendant had lost on merits does not advance the cause of justice; it rather obstructs it because such a plea is technical. Keeping in view the totality of facts and the course of litigation through three courts below, the Court held that allowing the plaintiff to discharge drain water over the land was more in accord with justice, especially since it had been found that she had in fact discharged drain water through the lane for many years. The Supreme Court allowed the appeal, set aside the impugned judgment of the High Court, and restored the judgment of the first appellate court affirming the trial court's decree. The parties were directed to bear their own costs.
Headnote
A) Civil Procedure - Pleadings - Alternative Claims - Not mentioned - In a suit for easementary right to discharge drain water, the plaintiff claimed title over the lane and alternatively easementary right. The Supreme Court held that merely because the plaintiff asserted title in the plaint while also praying for easement, she should not lose the easementary right which was found established by the trial and first appellate courts. The court noted that the prayer was ultimately for easement and the alternative claim did not defeat it. Held that a plaintiff cannot be denied relief on the basis of easement solely because the plaint contained assertions of title (Paras 5-7). B) Civil Procedure - Maintainability of Suit - Technical Plea - Not mentioned - The defendant raised a plea of non-maintainability for the first time in the Supreme Court, contending that the suit was not maintainable because the plaintiff had inconsistently claimed both title and easement. The Supreme Court rejected this plea, holding that although non-maintainability is a question of law, allowing it to be raised for the first time in the last court after the defendant had lost on merits does not advance justice. Held that technical pleas should not be allowed to thwart the course of justice, and the suit should not be dismissed on such grounds (Paras 6-8).
Issue of Consideration
Whether plaintiff should lose easementary right found acceptable because she also claimed title over the lane; whether suit was non-maintainable on that ground and whether non-maintainability plea can be raised first time in last court.
Final Decision
Appeal allowed; impugned High Court judgment set aside; first appellate court's judgment affirming trial court decree restored; parties to bear own costs; plaintiff entitled to discharge drain water over the land.
Law Points
- A plaintiff claiming title and alternatively easementary right cannot be denied the easement if that claim is established
- plea of non-maintainability being a question of law cannot be allowed to be raised for the first time in the last court after defendant lost on merits
- technical pleas should not thwart course of justice
- alternative claims permissible
