2006 (5) TMI 478 - SC - Indian Laws

Whether the courts below are right in giving a finding regarding extinguishment of ease mentary right without any pleading or evidence regarding the same? Whether the courts below are justified in presuming extinguishment when there is no pleading or evidence to what effect? Whether the courts below are right in stating that to prove easement by prescription, it is necessary to show the existence of easement by necessity is a condition precedent to plead and prove easement by prescription? Whether the courts below are erred in stating that the dominant tenement owner s right over servient tenement will get extinguished when the servient tenement s ownership transferred to another person by way of sale by servient owner? Whether the courts below are correct in stating that the easement created got extinguished when there is no change in physical features of the property covered render that easement right as useless or unnecessary?

Summary

Issues Involved:
1. Jurisdiction of High Court under Section 100 of the Code of Civil Procedure, 1908 (CPC).
2. Distinction between easement of necessity and easement by grant.
3. Extinguishment of easement rights under Section 41 of the Indian Easement Act, 1882.

Detailed Analysis:

1. Jurisdiction of High Court under Section 100 CPC:
The appellant challenged the High Court's jurisdiction to interfere with concurrent findings of fact by the lower courts. The High Court's role under Section 100 CPC is limited to addressing substantial questions of law, not re-appreciating evidence. However, the High Court can intervene if the lower courts misinterpret documentary evidence, consider inadmissible evidence, ignore material evidence, or misapply legal principles. The Supreme Court cited precedents to affirm that the High Court can interfere if the trial and appellate courts misdirected themselves on legal questions or placed the onus on the wrong party. The High Court correctly formulated substantial questions of law and found that the lower courts erred in their approach by treating the easement as one of necessity rather than a grant.

2. Distinction between Easement of Necessity and Easement by Grant:
The primary legal issue was whether the right of way claimed by the defendant was an easement of necessity or an easement by grant. The trial court and the first appellate court treated it as an easement of necessity, which could be extinguished under Section 41 of the Indian Easement Act, 1882, when the necessity ceased. However, the High Court found that the relevant clause in the Partition deed indicated an easement by grant. The Supreme Court upheld this finding, noting that the intention of the parties, as expressed in the Partition deed, was to create a permanent right of way, not contingent on necessity. The legal effect of the document's terms is a question of law, and misconstruction of such terms gives rise to a substantial question of law.

3. Extinguishment of Easement Rights under Section 41 of the Indian Easement Act, 1882:
The lower courts concluded that the easement of necessity ceased to exist because the defendant had alternative access. However, the High Court and the Supreme Court clarified that Section 41 applies only to easements of necessity, not to easements by grant. An easement by grant is a contractual arrangement that remains effective regardless of the availability of alternative access. The Supreme Court emphasized that the terms of the grant control its scope and duration, and such an easement does not extinguish merely because the necessity ceases.

Conclusion:
The Supreme Court dismissed the appeal, affirming the High Court's decision that the right of way was an easement by grant, not an easement of necessity. The High Court was justified in interfering with the lower courts' findings as they misinterpreted the nature of the easement. The legal principles regarding the distinction between easements of necessity and easements by grant, and the scope of High Court's jurisdiction under Section 100 CPC, were correctly applied. The appeal was dismissed with no costs.