9911796707
TMI Blog2005 (1) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in Tarsem Singh case [ 2001 (9) TMI 1156 - SUPREME COURT] as taking a view contrary to and differing from the law laid down by a larger Bench in Collector of Bombay [ 1955 (2) TMI 20 - SUPREME COURT] ). Secondly, we notice that the decision in Tarsem Singh (supra) is not in respect of an easementary right arising out of necessity. There does not seem to be any discussion on the said aspect of the matter in this judgment. The view taken in Collector of Bombay (supra), therefore, appears to hold the field, particularly where the nature of easementary right claimed is not capable of being evaluated in terms of compensation and arises out of sheer necessity. In the peculiar facts and circumstances of the case, therefore, the distinction d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of the appellant was fenced off by barbed wire. An electric sub-station and living quarters for the employees of the appellant were also constructed thereupon. It appears that the appellant blocked off the passage being used as access to the land of the respondent which passed through the residential quarters and prevented such access to the said respondents. Respondents 1 to 3 filed a suit before the sub-judge Nalagarh for a mandatory injunction ordering the appellant- Board to remove the barbed wire blocking access to their land and for a permanent injunction to restrain the appellant in any manner to obstruct the access to their land. The trial court dismissed the suit. Respondent 1 to 3 carried an appeal before the Additional Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the land of the appellant as the other three sides of the land of the said respondents were surrounded by the territory of Haryana State. There is also a concurrent finding that the sale deed (Ex.PW 1/a) by which the lands were sold by Rikhi Ram to the Appellant-Board contained a clause giving respondents 1 to 3 a right of approach through the land purchased by the appellant; that in the absence of proper evidence led by present appellants (original defendants) by producing the relevant record, adverse inference had to be drawn to hold that fencing was put in the year 1986 as claimed by the plaintiffs; that the trial court was not right in holding that the map (Ex.PW 1/o) was not approved and, therefore, the claim of the respondents- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court considered several judgments cited before it and drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity like a right of passage and held that right of passage by way of necessity, as enjoyed by the respondents-plaintiffs over the land of Rikhi Ram and now acquired by the appellantdefendants, was not extinguished by reason of acquisition. The High Court relied on the observations of this Court made in Collector of Bombay v. Nusserwanji Rattanji Mistri and others. (AIR 1955 SC 298), wherein it is observed thus : Under Section 16, when the Collector makes an award he may take possession of the land which sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icularly where the nature of easementary right claimed is not capable of being evaluated in terms of compensation and arises out of sheer necessity. In the peculiar facts and circumstances of the case, therefore, the distinction drawn by the High Court about nonextinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. In any event, we do not think that the present is a fit case where it is necessary for us to go deeper into this larger issue of law for we are satisfied that the judgment of the High Court under appeal is not one which is required to be interfered with in exercise of our jurisdiction under Article 136 of the Constitution. For all these reasons we are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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