The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA NO.493 OF 2016 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 25.08.2016 and 03.09.2016 respectively passed by the learned Additional District Judge, Bhanjanagar in R.F.A. No.9 of 2013 in confirming the judgment and decree dated 05.08.2013 and 14.08.2013 respectively passed by the learned Civil Judge (Senior Division), Bhanjanagar in C.S. No.33 of 2011. ……… Smt. Prativa Mahapatra :::: Appellant. -:: VERSUS ::- State of Odisha & Others :::: Respondents. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ---------------------------------------------------------------------------------- For Appellant … Mr.S. Kar (Advocate) For Respondents … Mr. G.N. Rout, ASC ------
Legal Reasoning
CORAM : MR. JUSTICE D.DASH ---------------------------------------------------------------------------------- Date of Hearing: 12.03.2024 :: Date of Judgment:15.04.2024 ---------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge, Bhanjanagar in RFA No.09 of 2013; by which the judgment and decree passed by the learned Civil Judge (Senior Division), Bhanjanagar in C.S. No.33 of 2011 have been confirmed. The suit having been dismissed, the Appellant as the unsuccessful Plaintiff had carried the Appeal under section 96 of the Code which too has been dismissed. Hence the present Second Appeal is at the instance of the Appellant, who has remained as the unsuccessful Plaintiff before the Trial Court as well as the First Appellate Court. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiff’s case is that there is a pathway measuring 40 ft. in length and 20 ft. in breadth over the land under Plot No.348 appertaining to Khata No.120 of Mouza-Bellaguntha and also of 120 ft in length and 20 ft. in breadth over the land under Khata No.463 assigned with Plot No.1541. Thus it is said that the area of the path way in total is Ac.0.07 dec. It is stated that the disputed plot no.1541 and 1542 as also other undisputed Plot Nos.346 and 437 had been recorded in the name of Government High School whereas the disputed Plot No.348 with Plot No.439 and 350 stands recorded in the name of Veterinary Hospital, Bellaguntha, The same are situated in Page 2 of 12 a compact block and the N.A.C. road runs over Plot No.328 which exits to the north of plot no.346,348,349 and 350 and 1541 and it measures Ac.0.925 dec. It is stated that the same is a vacant dry land. The Plaintiff further states that a room being there is used for the Veterinary Hospital and that is situated over the above land on its eastern side whereas the main Veterinary Hospital is situated on the land covered Plot No.348, 349 and 350. The Plaintiff further claims that the entire land covered under Hal Plot No.1541, 1542, 347, 348,349 and 350 was previously occupied by one A. Balya Patra of Bellaguntha. He left the same for public use, i.e., for a Technical High School and Veterinary Hospital. During the last settlement operation, the above land was recorded in the name of the Technical High School as well as the Veterinary Hospital. It is also stated by the Plaintiff that to the south of the disputed Plot No.1541 and 1542 which is undisputed, she has her self-acquired property measuring Ac.1.50 dec. covered under Plot No.1543-Ac.0.27 dec., Plot No.1544- Ac.0.1.25 dec., Plot No.1545-Ac.0.338 dec. and Plot No.1546- Ac.0.078 dec. The Plaintiff had constructed her residential house over a portion of the above land and the remaining land is being used for agricultural and horticulture. So, the Plaintiff has purchased a portion of the above land on 15.04.1996 from one Abhimanyu Khatei under a Registered Page 3 of 12 Sale Deed of the year 1996. Parents of Abhimanyu and they (Arjuna and Sita) had earlier purchased the land by Registered Sale Deed dated 11.06.1974 from one Sadhu Charan Dash and by Registered Sale Deed dated 30.05.1973 from one Subasini Das. The above land in total measures Ac.0.18 dec. from southern side of Plot No.1543 and that was the self-acquired property of Radha Krushan Mahapatra and Nabin Kanta Mahapatra, who had purchased the same by Registered Sale Deed of the year 1997 and sold the same to the Plaintiff by Registered Sale Deed dated 21.09.1998. The Plaintiff also claims that to the eastern side of her private land, land covered under Plot No.1540 is situated and on southern side there are agricultural land whereas on the western side as well as south-east corner, there exists a tank. The Plaintiff, therefore, claims that she and her predecessors- in-title (vendor, vendor’s vendor) used to pass at that passage of 20 ft. breadth situated over the said plot no.1541 which runs by the western side of plot no.348 where exists a footpath having metals over it and it is of 20 ft. breadth. The Plaintiff further states that except the said path way, there is no alternate path to her house and the agricultural land. Her house is situated over the land under Plot No.1543 where she is residing with her family members. Page 4 of 12 The Plaintiff thus claims thus is that she along with her predecessors-in-title have been using the said path way as a public road and they use to take their bullocks and cows through the same without objection from anyone and except the suit path way, there is no alternative path available to them. It is also stated that the Electricity Department has placed poles by the side of the public road since long. When the matter stood thus sometime in the month of March, 2011, the Assistant Veterinary Surgeon of the Veterinary Hospital with the help of some workman and contractor started constructing boundary wall surrounding the land under Plot No.1541 and 348. When the work progressed in the western direction, the Plaintiff apprehended that the approach to her premises might be closed. So, he raised objection. The Defendant No.3 did not listen to the same. The Plaintiff further claims that the public road is lying through Plot No.1541 under Khata No.463 and Plot No.348 is the connection to the main road situated over Plot No.328 and apart from the above road, the rest land is in occupation of the Veterinary Department since long and the Headmaster of the Technical High School, the real owner of the above land had never objected to the use of path way by the Plaintiff. The Plaintiff, therefore, served notice under section 80 of the Code upon the Defendants requesting them not to proceed Page 5 of 12 with the construction. The Defendant No.3, however, did not stop the construction of the boundary wall for which the Plaintiff was forced to file the suit for declaration of her easementary right of path way over the suit land. 4. The Defendant Nos.1 and 3 in their written statement while traversing the plaint averments have stated that Veterinary Hospital is situated over Plot No.348,349 and350 under Khata No.120 and said plots are within the premises of the office of the Government and were gifted by a broad hearted man of the locality for establishment of Veterinary Hospital to provide services to the animals and birds of the local people and also for providing education by opening High School. It is also stated that the public have also donated lands for the above institution. They state that the Plaintiff has got land to the southern side of Veterinary Hospital and Government High School and she has constructed a thatched house over her land. The existence of any path way over the disputed plot is strongly denied. They claim that the land is having barbed wire fencing all around and the Plaintiff has no claim of any path way over the same. It is also stated that the Plaintiff would no way be harmed or prejudiced if the boundary wall is erected all around. According to them, the Plaintiff has no right, which she Page 6 of 12 claims through the user as path way and she has no easementary right at all over the said land. 5. The Defendant Nos.4 to 6 in their written statement have supported the case of the Plaintiff. 6. On the above rival pleadings, the Trial Court in total framed five issues. Coming to answer the crucial issue, i.e, Issue Nos.3 and 4 as regards the claim of easementary right over the suit path way by the Plaintiff and declaration of said right in her favour and in consequence as to her entitlement to the relief of injunction, upon examination and their evaluation, the answer has been rendered against the Plaintiff that she has acquired no right of easement over the said land as claimed by her. Such decision has practically led to the dismissal of the suit. The Plaintiff having been non-suited when carried the First Appeal has also failed therein. 7. The Appeal has been admitted to answer the following substantial question of law:- “Whether, the First Appellate Court while coming to a conclusion that the Plaintiff even if is said to be using the land in suit as a path way without any hindrance from the time of purchase, for acquisition of easementary right by prescription under section 15 of the Easements Act, 1882 is falling short; has erred in law to apply the rule of the period Page 7 of 12 tacking keeping in view the same user by the Plaintiff’s Predecessors-in-Title purchased land which being taken far exceeds the period?” the of 8. Mr. S. Kar, learned counsel for the Appellant submitted that the First Appellate Court has taken a view that the Plaintiff has failed to prove that he has acquired the easementray right over the land in question by way of prescription. He submitted that as even accepting the evidence as to the user of the said land by the Plaintiff as path way, the period required to be completed by the time of institution of the suit is falling short. He, however submitted that in recording such a finding, the First Appellate Court has failed to take note of the said user of the path way and exercise of easementary right by the Predecessors-in-Title of the Plaintiffs and forgetting for a moment to apply the rule of tacking. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. 9. Mr. G. N. Rout, learned Additional Standing Counsel submitted that the Plaintiff having not so specifically pleaded and tendered evidence as to establish the fact that when she purchased the land, it was too couched with that right of easement over the suit land which her vendors were exercising and such facts being conspicuously absent in the Page 8 of 12 deeds of sale; the rule of tacking cannot come to the aid of the Plaintiff to complete the period. 10. Keeping in view the rival submission made, I have carefully read the judgments passed by the Courts below. 11. First of all let us have a look at the provision contained in section 15 of the Easements Act, 1882. Section 15 of the Easement Act provides the acquisition of right of easement by prescription. It reads as under:- “15. Acquisition by Prescription:- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement without interruption, and for twenty years, And where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure, or anything affixed thereto, as an easement, without interruption and for twenty years. And where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption and for twenty years. The right to such access and use of light or air, support, or other easements, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution or the suit, wherein the claim to which such period relates is contested. Page 9 of 12 Explanation I.--Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfillment of which it is to cease. Explanation II.--Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made. Explanation III.--Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation IV.--In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section belongs to 1[Government] this section shall be read as if, for the words "twenty years", the words" 2[thirty years]" were substituted. 12. The Plaintiff as have been found by the Trial Court, upon examination of the evidence and their evaluation has been enjoying her property since her purchase in the year Page 10 of 12 1996. The suit has been filed in the year 2011. By the time of the institution of the suit, even if we accept the case of the Plaintiff that having purchased the property she has been using the suit as a path without any interruption from any quarter, the period is only coming to be about 15 years, which is half of the prescribed. Admittedly, the land under Plot No.348 and 1541 stands recorded in the name of Veterinary Department and Government Technical High School, Bellaguntha belonging to the State. Although it is stated by the Plaintiff that her vendor and vendor’s vendor had been so using the land as path, the said facts are not traceable from the documents proved from the side of the Plaintiff, mainly, the Registered Sale Deeds. The vendor of the Plaintiff having sold the property to the Plaintiff, it is not shown that he had also clothed the Plaintiff with the right of easement over the land owned by Defendants over which that vendor was exercising the right of easement and, therefore, the rule of tacking would not at all come into play. In order to reap the benefit of the rule of tacking, the Plaintiff being under the legal obligation to prove that her vendor was exercising that easement right over that land for a particular period and that having been transferred to her with the dominant tenement, he continued to exercise the easement right over that particular land belonging to other without any gap and in Page 11 of 12 continuity whereby the total period is exceeding the period as required under the law and, therefore, she has acquired the right of easement by prescription. The Plaintiff’s evidence both oral and documentary falls far short of these legal requirements. In the wake of aforesaid, the substantial question of law finds its answer against the case/claim of the Plaintiff which in turn leads this Court to confirm the judgments and decrees passed by the Trial Court as also the First Appellate Court. 13. In result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash), Judge Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 29-Apr-2024 19:09:15 Page 12 of 12