2016 (11) TMI 1675 - HC - Indian Laws

Declaration of permanent injunction - declaration to declare his easementary right over the suit schedule cart track - permanent injunction restraining the defendants from interfering with his right of enjoyment of such easementary right - burden to prove - evidence to discharge the onus - Section 6(c) of the Transfer of Property Act, 1882 - HELD THAT - An easement is a right conferred for the beneficial enjoyment of the dominant heritage and the owner of such dominant heritage is called dominant owner while the land in which such easement right is to be exercised is a servient heritage and that the owner of such servient heritage is called as servient owner - what cannot be transferred is only an easement exclusively without transferring the dominant heritage, namely, the land for which such easement right is conferred in the servient heritage. In other words, a transfer of dominant heritage would automatically pass the easement right also to the person in whose favour such transfer takes place. To put it more clearly, the easement right and dominant heritage cannot be transferred separately by segregating one from the other to two different persons, since such easementary right would automatically follow the right on the dominant heritage if such dominant heritage is transferred to another person - the contention of the learned counsel for the appellant cannot be sustained. The lower appellate Court has rightly decreed the suit taking into consideration of the existence of Ex.A1 agreement followed by the sale deeds marked as Exs.A2 to A4 in favour of the plaintiff - Decided against appellant. One more aspect to be noted in this case is that the defendants 1 and 2, who are the parties to the agreement under Ex.A1, though filed their written statement, have, however, not chosen to contest the matter latter. They remained exparte. They were not even examined as witnesses on the side of the defendants. Needless to say that any amount of pleading without there being any evidence in support of such pleading, cannot be looked into or sustained or held to be proved especially, when the other side disputes such claim. Admittedly, the 3rd defendant, who is the appellant herein, is only a subsequent purchaser during the pendency of the suit. He was impleaded as a party defendant only at a later point of time - Therefore, he is not competent to speak anything about the intention of the parties to Ex.A1. If the defendants 1 and 2 have not come forward to contest the suit and dispute the claim of the plaintiff, the 3rd defendant, a subsequent purchaser, cannot dispute the claim of the plaintiff, when such claim is based on the agreement under Ex.A1 entered into between the vendors of the plaintiffs and the defendants 1 and 2. In fact, the mischief mongers are the defendants 1 and 2 who dishonestly executed the sale deed in favour of the 3rd defendant in respect of suit 'B' Schedule, knowing fully well that they are bound by the terms of earlier agreement for easementary right under Ex.A1 fastened on such property. The trial Court failed to consider all these aspects and erroneously dismissed the suit which the lower Appellate Court has set right by reversing such findings and decreeing the suit - the substantial questions of law raised in this appeal are answered against the appellant. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Declaration of easementary right over the suit schedule cart track.
2. Permanent injunction restraining interference with the easementary right.
3. Validity of the agreement dated 07.03.2005 under Section 6(c) of the Transfer of Property Act, 1882.
4. Burden of proof in a suit for declaration.

Detailed Analysis:

1. Declaration of Easementary Right:
The plaintiff sought a declaration of his easementary right over the B-Schedule property, claiming it as a cart track, which was denied by the defendants. The plaintiff purchased the A-Schedule property through three sale deeds, which included the right to use the B-Schedule property as a cart track, as per an agreement dated 07.03.2005. The trial court dismissed the suit, finding that the agreement was not acted upon, and the plaintiff failed to establish his easementary right. However, the lower appellate court reversed this decision, validating the agreement and recognizing the easementary right of the plaintiff.

2. Permanent Injunction:
The plaintiff also sought a permanent injunction to prevent the defendants from interfering with his easementary right. The trial court's dismissal of the suit was overturned by the lower appellate court, which decreed the suit in favor of the plaintiff, thereby granting the permanent injunction.

3. Validity of Agreement under Section 6(c) of the Transfer of Property Act, 1882:
The appellant contended that the easementary right conferred by the agreement dated 07.03.2005 could not be transferred, as it is barred under Section 6(c) of the Transfer of Property Act, 1882. The court clarified that Section 6(c) only prohibits the transfer of an easement separately from the dominant heritage. Since the easementary right was transferred along with the dominant heritage (A-Schedule property), the transfer was valid. The court cited precedents to support this interpretation, emphasizing that the easement right follows the dominant heritage upon its transfer.

4. Burden of Proof:
The appellant argued that the lower appellate court erred in shifting the burden of proof, asserting that the plaintiff must prove his case independently of the defendants' proof. The court found that the plaintiff had sufficiently established his case through the agreement and sale deeds, and the defendants' failure to contest the suit further weakened their position. The court noted that the 3rd defendant, being a subsequent purchaser during the pendency of the suit, could not effectively dispute the agreement's validity or the plaintiff's easementary right.

Conclusion:
The court dismissed the second appeal, affirming the lower appellate court's decision to decree the suit in favor of the plaintiff. The substantial questions of law were answered against the appellant, and the plaintiff's easementary right over the B-Schedule property was upheld, along with the permanent injunction against the defendants.