Case Note & Summary
The petitioners, Dasharath Bhaguji Jadhav and his sons, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 30 April 2013 passed by the learned District Judge-I, Pune, which dismissed their Miscellaneous Civil Appeal No. 85 of 2013. The appeal had been filed against an order dated 5 February 2013 of the Joint Civil Judge, Junior Division, Pune, rejecting the petitioners' application (Exhibit 5) for a temporary injunction. The petitioners were the original plaintiffs in a suit seeking a declaration of a right of way over the suit property belonging to the respondents (Kisan Bhaguji Jadhav and others). The dispute arose between family members over a passage allegedly used by the petitioners to access their property from the main road. The petitioners claimed that they had no other access and that the way was an easement of necessity, and alternatively, an easement by prescription due to long user. The respondents denied the claim, asserting that the petitioners had an alternative access and that the user, if any, was permissive. The trial court and the appellate court both found that the petitioners failed to prove the existence of a right of way. The High Court, after hearing counsel for both sides, upheld the concurrent findings. The court noted that the petitioners had an alternative access from the main road, and therefore the claimed way was not a necessity but only a convenience. Regarding prescription, the court observed that the evidence did not show 20 years of uninterrupted, peaceful, and open user as required under Section 15 of the Indian Easements Act, 1882. The petitioners' own witnesses admitted that the user was permissive. Consequently, the court held that no prima facie case was made out for injunction, the balance of convenience was against the petitioners, and no irreparable injury would be caused. The writ petition was dismissed with no order as to costs.
Headnote
A) Easement Law - Right of Way - Easement by Necessity - Section 13 of the Indian Easements Act, 1882 - The plaintiffs claimed a right of way over the defendants' property as an easement of necessity, but the court held that since the plaintiffs had an alternative access from the main road, the claimed way was not a necessity but only a matter of convenience. The court upheld the findings of the lower courts that the plaintiffs failed to prove absolute necessity. (Paras 3-8)
B) Easement Law - Right of Way - Easement by Prescription - Section 15 of the Indian Easements Act, 1882 - The plaintiffs also claimed a right of way by prescription, but the court found that the evidence did not establish continuous, uninterrupted, and peaceful user for 20 years. The plaintiffs' own witnesses admitted that the user was permissive and not adverse. The court confirmed the dismissal of the injunction application. (Paras 9-12)
C) Civil Procedure - Injunction - Temporary Injunction - Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 - The court held that the plaintiffs failed to make out a prima facie case for grant of temporary injunction, as they could not establish a legal right to the way. The balance of convenience was in favor of the defendants, and irreparable injury was not shown. (Paras 13-15)
Issue of Consideration
Whether the petitioners (original plaintiffs) are entitled to a right of way over the suit property belonging to the respondents, either by way of easement by necessity or easement by prescription.
Final Decision
The High Court dismissed the writ petition, upholding the orders of the lower courts. The court held that the petitioners failed to prove a right of way by easement of necessity or prescription, and therefore no temporary injunction could be granted. No order as to costs.
Law Points
- Easement by necessity requires absolute necessity
- not mere convenience
- Easement by prescription requires 20 years of uninterrupted
- peaceful
- and open user
- Burden of proof lies on claimant
- Right of way cannot be claimed over another's property if alternative access exists.
Case Details
2013 LawText (BOM) (12) 56
Writ Petition No. 5889 of 2013
Mr. G. S. Godbole i/b. Mr. N. N. Wadikar for the Petitioners, Mr. P. S. Dani i/b. Mr. Nilesh M. Wable for Respondent Nos. 1 to 8
Dasharath Bhaguji Jadhav, Jaysingh Dasharath Jadhav, Devidas Dasharath Jadhav, Harishchandra Dasharath Jadhav
Kisan Bhaguji Jadhav, Ankush Kisan Jadhav, Lahu Kisan Jadhav, M/s. Shri. Mane Developers, M/s. J. M. Developers and Builders, Master Shubham Dnyanoba Jadhav, Mr. Dnyanoba Bhaguji Jadhav, Laxmibai Dnyanoba Jadhav
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging the dismissal of a miscellaneous civil appeal and rejection of a temporary injunction application in a suit for declaration of right of way.
Remedy Sought
The petitioners sought to quash the order dated 30 April 2013 of the District Judge-I, Pune, and to grant a temporary injunction restraining the respondents from obstructing their claimed right of way over the suit property.
Filing Reason
The petitioners claimed a right of way over the respondents' property as an easement of necessity or by prescription, which was denied by the respondents, leading to the filing of the suit and subsequent applications.
Previous Decisions
The Joint Civil Judge, Junior Division, Pune rejected the petitioners' application for temporary injunction (Exhibit 5) on 5 February 2013. The Miscellaneous Civil Appeal No. 85 of 2013 filed by the petitioners was dismissed by the District Judge-I, Pune on 30 April 2013.
Issues
Whether the petitioners are entitled to a right of way over the suit property as an easement of necessity under Section 13 of the Indian Easements Act, 1882?
Whether the petitioners are entitled to a right of way over the suit property as an easement by prescription under Section 15 of the Indian Easements Act, 1882?
Whether the petitioners have made out a prima facie case for grant of temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908?
Submissions/Arguments
The petitioners argued that they had no other access to their property except through the suit property, and that they had been using the way for more than 20 years, thus acquiring an easement by necessity and by prescription.
The respondents contended that the petitioners had an alternative access from the main road, and that the user of the suit property was permissive and not as of right, and therefore no easement was established.
Ratio Decidendi
A right of way claimed as an easement of necessity must be absolutely necessary for the enjoyment of the dominant heritage, not merely convenient. An easement by prescription requires proof of continuous, uninterrupted, peaceful, and open user for 20 years as of right, without permission. The burden of proof lies on the claimant. In this case, the petitioners had an alternative access and the user was permissive, so no easement was established.
Judgment Excerpts
The controversy in the above Petition lays in a narrow compass viz. Whether the Plaintiffs can claim a right of way through the suit property either by way of easement of necessity or by way of easement by prescription.
The learned Judge of the Appellate Court has held that the Plaintiffs have an alternative access from the main road and therefore the claimed way cannot be said to be a necessity but only a convenience.
The evidence on record does not show that the user was continuous, uninterrupted, peaceful and open for a period of 20 years as required under Section 15 of the Indian Easements Act, 1882.
Procedural History
The petitioners (original plaintiffs) filed a suit for declaration of right of way and sought a temporary injunction. The trial court (Joint Civil Judge, Junior Division, Pune) rejected the injunction application on 5 February 2013. The petitioners appealed to the District Court (Miscellaneous Civil Appeal No. 85 of 2013), which was dismissed on 30 April 2013. The petitioners then filed the present writ petition under Article 227 of the Constitution of India before the Bombay High Court, which was heard and dismissed on 13 December 2013.
Acts & Sections
- Indian Easements Act, 1882: Section 13, Section 15
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
- Constitution of India: Article 227
