9911796707
TMI Blog2000 (3) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchaser the actual physical possession of the land purchased and to make the land accessible. The land appertains to 1, Mohanlal Sureka Road, Howrah. There is no dispute that there is no direct access to the land in question. Immediately on the northern side of the land is premises No. 1/1, Mohanlal Sureka Road, which is in the possession of Mahabir Prasad Todi's successor-ln-lnterest, to the West and South-west side of the land are premises in occupation of Bazrangball Market Association. To the South and South-east of the land is premises No.10, Guha Road (formerly known as Takhurdas Sureka Road) in the occupation of Takhurdas Sureka Engineering Private Limited. On the northern side of the Todis' premises is Hopklns Road now known as Mohanlal Sureka Road. On the south immediately adjacent to the premises of Takhurdas Engineering Corporation Pvt. Ltd., and Bazrangbali Market Association is Guha Road. The purchaser that is the respondent No. 2 claims access to the land purchased over premises No. 1/1, Mohanlal Sureka Road. 4. Their case is that the land purchased is land locked, and it is only accessible from the northern side that is from Mohanlal Sureka Road and over 1/1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urveyor was also directed to measure the lands claimed to be leasehold. 7. The entitlement was directed to be determined not only with regard to the registered conveyance, annexed, but also with regard to any lease, deed that may be produced by the Todls. 8. The surveyor duly submitted a report after visiting the locale. In his report, the surveyor has submitted that on the basis of the registered conveyance produced by the Todis, they had purchased 16 cottah. 30 chlltack and 39 sq. ft. and according to the lease deed they had taken on rent 2 cottah, 8 chlttack and 6 sq. ft. lands. In other words, the total area in Todis' possession should be about 19 cottah and 6 chlttack. The surveyor, therefore, found that the Todls were in occupation of an excess area of land of 3 cottah, 13 chlttack and 26.2 sq. ft. excluding the boundary wall from the measured area in the possession of the Todls. The surveyor found that the lease was not a valid document. But he found that the lease portion would not be suitable for a two way track, to and from the purchased land according to him the possible Ingress and igress would be made through the western portion of the area now in the possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold to Sachdeva. On 7.8.67, Sachdeva conveyed the said land purchased by them to Todis. On 15.5.68, the Company that is Takhurdas Sureka Iron Foundary Ltd. was ordered to be wound up. On 9.7.69, the sold out portion was numbered as 1/1, Mohanlal Sureka Road. The land retained by the Company continued to remain as 1, Mohanlal Sureka Road. On 20.3.80, the Official Liquidator took possession of the land retained by the Company. In the report submitted by the surveyor, it was said that only approach to 1, Mohanlal Sureka Road was through 10, Guha Road. Itwas also stated that other three sides were surrounded by brick walls and there was no road from northern side. On 26.5.92, the sale notice was published by the Official Liquidator regarding sale of No. 1/1, Mohanlal Sureka Road belonging to the Company under liquidation. On 10.6.92, Llca Private Ltd., that is the respondent No. 2 Inspected the property put up for sale. 14. It may be noted here that when the possession of the premises was handed over to the Official Liquidator on 20.3.90, there was a boundary wall round the premises and entry to the premises was through the premises of the applicant. On 20.7.92, the land of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso taken Inspection of the said land. But such entry was not allowed by the said Takhurdas Engineering Corporation Ltd. Thus, being unable to give possession of the said land from Guha Road as was Intended by the respondent by the Official Liquidator, it was decided to enter into the said land from Mohanlal Sureka Road being the original entrance of the said land. On reaching there, the representatives of Official Liquidator found that the entrance has blocked by a newly constructed wall fitted with an Iron gate. Thereafter, the representatives of Official Liquidator wanted to give possession of the said land to respondent No. 2 on 'as is where is basis' when the respondent No. 2 that is the original petitioner declined to take possession. Their case is that the Company (In liquidation) had deliberately made the land unaccessible with a view to frustrate the said sale. At the time of taking Inspection, the original petitioner that is the respondent No. 2 knew that the said land was actually approachable and always being approached from Mohanlal Sureka Road, but such entry was denied subsequently. Their further Case is that the entry and access would be extremely Inconvenient Inasm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated over that plot of land when the maker of the deed had no intention to create such right in favour of the vendee. Sri Ghosh further contended that when there was no express provision for creation of any easementary right, there is no room for creation of such right of implication. The next branch of argument of Mr. Ghosh was that it was never the case of the purchaser that they have any right of easement so as to use the land belonging to Todis, neither it was their case that to make their purchased land accessible, a path should be created by way of encumbering other's properties. Now, in this context, if we look into the original petition presented before the Company Court, we find that no such case was made out in that petition, the case of the purchaser was only that when they purchased the property in Court sale, they should be put Into actual physical possession. Mr. Jayanta Kr. Mitra, learned Advocate appearing for the respondent No. 2 that is Lica Pvt. Ltd., which company is the purchaser of the disputed plot of land has submitted before us that when the sale was conducted by the Court and when it was confirmed by the Court, the Court must put the purchaser into posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. We have already found that as there was no specific recitals with regard to such express grant, no right of easement can be acquired by way of express grant. When we have already referred to the deed in question wherein the deed was silent with regard to the acquisition of any right of easement, therefore, there was no scope for implication that may be drawn. When there was no express grant, the Implication that follows is that there is express restrictions and, therefore, no Inference can be drawn. The learned advocate appearing for the appellant has submitted before us that convenant did not reserve any right of way and therefore, there is no room for consideration of any easementary right of way. In this connection, he has referred to the text book on Easement by Gale. In the 16th edition of the book 'Gale on easement', paragraph 3.36, it was observed that ordinarily on disposition of part of land by the disposing party, no reservation of any easement in favour of the part retained will be Implied. If the vendor or the grantor had any Intention to reserve any such right over the tenement granted. It is his duty to reserve it expressly in the grant Itself. In the Instant case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the question of easement of necessity has arisen. Mr. J. K. Mitra. learned advocate appearing for respondent No. 2 has submitted before us that it is a need based law and not user based and therefore, the easement necessity should be Implied in this case. But easement of necessity will only arise if there is no alternative access to the land retained at the time of severence. Thus, the onus lies upon the respondent No. 2 who are claiming such easement of necessity to show that there is no alternative mode of access to the land in question. It has been argued by the respondent No. 2 that since the property is land locked, the Court while selling the property should give access to the property to the purchaser. To this, the learned advocate appearing for the appellant has contended that the respondent purchaser cannot have any legitimate grievance because the property was sold to him 'as is where is basis' and in his connection, he referred to the decision of the Supreme Court where property of the Company in liquidation was sold by the winding up the in Court in similar terms. 25. In this decision, the Supreme Court's decision is that when the final liquidation as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale. Now it was last argued by the appellants that even if it is assumed that an easement of necessity arise on the date of severance that easement was abandoned. The wall separating No. 1 Mohanlal Sureka Road (which was retained from 1/1, Mohanlal Sureka Road) which was sold has been in existence since 1967 when the Todis purchased the property from Sachdevas. There has been no user of 1/1, Mohanlal Sureka Road by 1, Mohanlal Sureka Road after 1/1, M. S. Road had been sold for. There has been no protest or objections to the continuance of the wall separating No. 1, Mohanlal Sureka Road from 1/1, Mohanlal Sureka Road. Thus, there has been no user of 1/1, Mohanlal Sureka Road for 1, Mohanlal Sureka Road for 30 years. Therefore, at this stage the respondent cannot claim any such right. 27. The learned advocate appearing for the appellant submitted before that there has been an alternative passage, that is, a narrow passage running from Guha Road on the south. The learned trial Judge found that the said passage is impassable. The word 'impassable' imples that it cannot be traversed but it was nobody's case that the said path cannot be used. In paragraph 17, page 11 of the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted earlier that possession should be given through 1, Guha Road as there was no appeal from that order, the said order reached Its finality. Therefore, the respondent No. 2 cannot now say that they are entitled to a right of passage over 1/1, Mohanlal Sureka Road. The order of the Court dated 17.9. 92 was very specific and the order, as we have observed reached its finality. Therefore, the respondent No. 2 cannot now say for a better right of way to the disputed plot. Thus, in our view, there is an alternative passage available to the respondent No. 2 to use the properly that is 1, Mohanlal Sureka Road. 29. While submitting on the last branch of his argument, Sri Ghosli has submitted that the wlndlng-up Court had no jurisdiction to pass any order affecting any properly belong to a third parly and not to the Company in liquidation. In this connect Inn, he lias drawn our attention to the provisions of section 446(2) of the Company Act, which run as: Section 446(2).-- The Court which is winding up the Company shall notwithstanding anything contained in any other law for the lime being in force have Jurisdiction to entertain, or dispose of (a) any suit or proceeding by or agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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