Case Note & Summary
The dispute concerns an open plot and structure (suit property) jointly purchased by Smt. Ashakkabai and Smt. Mankuwarbai in a court auction. They made an east-west division: northern portion to Ashakkabai, southern to Mankuwarbai. On 1/3/1972, Ashakkabai sold her northern share to the plaintiff (Pandurang). In 1958, Mankuwarbai gifted her share to Dwarkaprasad Maheshwari, who later executed an agreement of sale in favour of Namdeo, brother of the defendant (Gulabrao). The defendant claims ownership through Namdeo. The plaintiff filed a suit alleging that the defendant encroached upon his northern plot by constructing a bathroom and cattle shed, and also started using the northern entrance gate to access a public lane, though the defendant had an entrance to the southern public lane. The defendant resisted, claiming that the open space in the east north corner was kept for joint use and that Mankuwarbai had a right to access the north side public lane through that space. The Trial Court framed six issues, appointed a Commissioner to visit the spot, and after appreciating evidence, held that the defendant had encroached upon the plaintiff's plot and had no right to pass over the open space. The First Appellate Court partly modified the decree, but the defendant appealed to the High Court. The High Court, after considering the evidence and submissions, held that the plaintiff proved his title and the defendant's encroachment. The court noted that the defendant failed to prove any right of way over the plaintiff's land, as there was no evidence of easement by necessity or grant, and the defendant had an alternative access. The High Court allowed the appeal, setting aside the First Appellate Court's decree and restoring the Trial Court's decree with modifications regarding the right of way.
Headnote
A) Property Law - Title and Encroachment - Sale Deed - Plaintiff purchased northern portion of plot by registered sale deed dated 1/3/1972 from Ashakkabai, who had acquired it by court auction and division - Defendant claimed through his brother Namdeo who had an agreement of sale from Dwarkaprasad, who received a gift from Mankuwarbai - Trial Court and First Appellate Court found defendant encroached by constructing bathroom and cattle shed on plaintiff's land - Held that plaintiff proved title and encroachment, and defendant failed to prove any right to the disputed portion (Paras 1-10). B) Property Law - Right of Way - Easement - Defendant claimed right of way through plaintiff's northern entrance to access public lane - No evidence of easement by necessity or grant - Defendant had alternative access to southern public lane - Held that defendant has no right to use plaintiff's entrance gate (Paras 11-15).
Issue of Consideration
Whether the defendant encroached upon the plaintiff's property and whether the defendant has a right of way over the plaintiff's land.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the First Appellate Court, and restored the decree of the Trial Court with the modification that the defendant has no right to pass over the open space.
Law Points
- Title by sale deed
- encroachment
- right of way
- easement by necessity
- adverse possession
- burden of proof
