Case Note & Summary
The appellant, Smt. Shalini Laxman Wadnerkar, as the sole surviving legal representative of the original plaintiff G.G. Suvarnapathak, appealed against a common judgment of the City Civil Court, Bombay, dismissing Special Civil Suit No.7708 of 1967 and Special Civil Suit No.1665 of 1979. The original plaintiff had agreed to purchase Plot No.5 from J.R. Gharpure on 21.10.1958, paid earnest money, and was given possession. However, Gharpure was adjudicated insolvent on 16.12.1958. The plaintiff's claim for specific performance before the Official Assignee was rejected, but he was granted leave to sue. He filed Suit No.4684/1961 against the Official Assignee, which was decreed in 1967. Meanwhile, the plaintiff had constructed a flour mill and residence on the plot, accessing them through the remaining land of Gharpure. The defendant, Bank of Baroda Employees Co-operative Housing Society, purchased the adjoining land from the Official Assignee in 1965 and denied the plaintiff's right of way. The plaintiff filed Special Civil Suit No.7708/1967 for a declaration of right of way and injunction, and later Special Civil Suit No.1665/1979 for specific performance of an agreement to sell the right of way. The trial court dismissed both suits. On appeal, the High Court examined whether the plaintiff had an easement of necessity, prescriptive easement, or easement by grant. It held that the plaintiff had alternative access through his own land, so no easement of necessity existed. The user was permissive, not adverse, so no prescriptive easement. There was no evidence of grant. The suit for specific performance was also dismissed as the agreement was not proved. The appeal was dismissed with no order as to costs.
Headnote
A) Specific Performance - Limitation - Suit for specific performance of agreement to sell - Plaintiff filed suit in 1961 against Official Assignee after rejection of claim - Suit decreed in 1967 - Appeal by subsequent purchaser - Held that the suit was within limitation as leave was granted by Official Assignee (Paras 1-5). B) Easement - Easement of Necessity - Right of way - Plaintiff claimed right of way over adjoining land as easement of necessity - Court found that plaintiff had alternative access through his own land - Held that easement of necessity requires absolute necessity, not mere convenience (Paras 6-10). C) Easement - Prescriptive Easement - Right of way - Plaintiff claimed prescriptive easement by long user - Evidence showed user was permissive and not adverse - Held that permissive user cannot ripen into prescriptive easement under Section 15 of Indian Easements Act, 1882 (Paras 11-15). D) Easement - Grant - Right of way - Plaintiff claimed right of way by grant from original owner - No documentary evidence of grant - Held that mere user without grant does not create easement (Paras 16-18).
Issue of Consideration
Whether the plaintiff had a right of way over the defendant's land as an easement of necessity or by prescription, and whether the suit for specific performance was barred by limitation.
Final Decision
Appeal dismissed with no order as to costs.
Law Points
- Specific performance
- Easement of necessity
- Prescriptive easement
- Right of way
- Adverse possession
- Limitation
