Full Judgment Text
2024 INSC 293
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9642 OF 2010
MANISHA MAHENDRA GALA & ORS. …APPELLANT(S)
VERSUS
SHALINI BHAGWAN AVATRAMANI & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 9643 OF 2010
MANISHA MAHENDRA GALA & ORS. …APPELLANT(S)
VERSUS
SHALINI BHAGWAN AVATRAMANI & ORS. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. The dispute in the above two appeals is in connection with
easementary rights over 20ft. wide road situated over land
Signature Not Verified
Digitally signed by
RAVI ARORA
Date: 2024.04.10
19:08:36 IST
Reason:
Survey No.57 Hissa No.13A/1 which is presently owned by the
respondents herein (hereinafter the ‘Ramani’s’).
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2. In Suit No.14 of 1994 instituted by Joki Woler Ruzer, the
descendants of the subsequent purchaser Mahendra Gala
were added as plaintiff Nos.2-4 (hereinafter the ‘Gala’s’). The
suit was for declaration of their easementary rights over the
20ft. wide road situate in the property of the Ramani’s and for
permanent injunction in respect thereof. The suit was decreed
by the court of first instance vide judgment and order dated
06.02.2003. However, the aforesaid judgment and decree was
set aside in appeal by the Ad-hoc District Judge-2, Raigad, vide
judgment and order dated 12.03.2009 and the suit was
dismissed. The High Court vide impugned judgment and order
dated 01.10.2009 upheld the aforesaid judgment and order of
the appellate court in Second Appeal No.305 of 2009.
3. Apart from the above suit, Suit No.7 of 1996 came to be filed
by the Ramani’s for declaring that the Gala’s or their
predecessor-in-interest have no right, title and interest in the
property and they do not have any right of way through the
above land. The aforesaid suit was dismissed vide judgment
and order dated 06.02.2003 by the court of first instance i.e.
Civil Judge, Junior Division, Murud. On the appeal being
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preferred, the judgment and order passed by the court of first
instance was set aside and the suit was decreed holding that
the Gala’s have no right of way either by easement of
prescription or of necessity on the suit land/road. The Gala’s
were restrained from disturbing the possession of Ramani’s
over the suit land and from doing any overt act over it.
4. Aggrieved by the dismissal of their Suit No.14 of 1994 and the
decreeing of the Suit No.7 of 1996 of the Ramani’s, these two
appeals have been preferred by the Gala’s. Their predecessor-
in-interest Joki Woler Ruzer has not joined and has not
preferred any separate appeal. Meaning thereby, that the
original plaintiff has accepted the verdict of the High Court.
5. It would be necessary and beneficial to recapitulate certain
background before considering the submissions of the
respective parties to arrive at any conclusion with regard to
their rights over the suit land, more particularly on the road in
question.
6. There is no dispute that one Ramchandra Borkar was the
owner of the vast land situate in Mouje Korlai, Taluka Murud,
District Raigad, Maharashtra i.e. Survey No.48 Hissa No.15
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and Survey No.57 Hissa No.13. The aforesaid Ramchandra
Borkar fell into arrears of government dues recoverable as
arrears of land revenue and, therefore, his aforesaid properties
were acquired by the government. Subsequently, a part of the
aforesaid property i.e. land Survey No.48 Hissa No.15 was sold
out by the government on 25.04.1969 through public auction
in favour of one Woler Francis who was also put in possession
thereof on 08.07.1969. Thus, Woler Francis became the
exclusive owner in possession of land Survey No.48 Hissa
No.15 admeasuring 1 hectare and 76 acres situated at Mouje
Korlai Taluka, Murud, District Raigad.
7. The remaining land which was initially possessed by
Ramchandra Borkar and which was acquired by the
government, was subsequently re-acquired by one Vasant
Ramchandra Borkar, of the family of original owner
Ramchandra Borkar. The said Vasant Ramchandra Borkar
sold out a piece of the said land on 09.07.1988 to one
Dharmadhikari being land Survey No.57 Hissa No.13A/2. The
balance land which was essentially a part of Survey No.57 was
sold to the family of Ramani’s by a registered Sale Deed dated
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11.09.1989 and was numbered as Survey No. 57 Hissa No.
13A/1.
8. In this way, the entire property of the Borkar family comprising
of Survey No.48 Hissa No.15 and Survey No.57 Hissa No.13
which was acquired by the government came into the hands of
Woler Francis (Survey No.48 Hissa No.15); the family of
Ramani’s (Survey No.57 Hissa No.13A/1); and the family of
Dharmadhikari (Survey No.57 Hissa No.13A/2).
9. The road in dispute on which easementary rights are claimed
by the Gala’s forms part of Survey No.57 Hissa No.13A/1
which is under the ownership of the Ramani’s.
10. Sometime in 1994, Woler Francis died and he was succeeded
by his heir and legal representative Joki Woler Ruzer. When
his use of the above 20ft. wide road was objected to by the
Ramani’s, he filed Suit No.14 of 1994 for declaration of his
easementary rights over the said land and for a decree of
permanent injunction. During the pendency of the said suit,
the aforesaid Joki Woler Ruzer transferred and assigned his
rights of the entire land i.e. Survey No.48 Hissa No.15 in favour
of one Mahendra Gala, the predecessor-in-interest of the
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Gala’s. The aforesaid Mahendra Gala was impleaded as
plaintiff in the aforesaid suit on 28.07.1998 and subsequently
on his death, the present Gala’s were substituted as his heir
and legal representative.
11. The suit was contested by the Ramani’s by filing a written
statement. They resisted the claim of the Gala’s regarding
easementary rights over the disputed rasta. They contended
that they have purchased the property Survey No.57 Hissa
No.13A/1 and categorically denied use of the said rasta
uninterruptedly by the Gala’s.
12. In the said suit, oral and documentary evidence were adduced
by the parties. The Gala’s produced Navneet Liladhar Hariya,
their Power of Attorney holder and the Manager of the property
as PW-1 , Bhalchandra Nathura Choradhekar, Sarpanch of the
village as PW-2 , Dattatray Shankar Sawant, one of their
neighbours as PW-3 and Bhalchandra Dattaram Tandel ,
Surveyor as PW-4, in order to prove their easementary right of
way over the disputed rasta.
13. The Gala’s also relied upon the sale deed by which Joki Woler
Ruzer had transferred and assigned his rights in land Survey
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No.48 Hissa No.15 in favour of Mahendra Gala, the
predecessor of the Gala’s.
14. The Ramani’s examined Sanjay Borkar as DW-1 and filed
certified copy of the deposition of one Arjun Ramani.
Additionally, they brought on record purshis Exh.165 and
Exh.170 .
15. On the basis of the pleadings of the parties and the evidence
adduced, the trial court framed several issues but the primary
issue was whether the Gala’s have any easementary right of
way over the land of the Ramani’s i.e., the disputed rasta .
16. We had heard Shri Huzefa Ahmadi, learned senior counsel for
the appellants and Shri Devansh Anoop Mohta, learned
counsel for the respondents.
17. The main thrust of the argument of Shri Huzefa Ahmadi,
learned senior counsel for the Gala’s (appellants in both the
civil appeals) is that Gala’s are undisputedly the owners in
possession of the land Survey No.48 Hissa No.15 and since
they have no alternative way of access to the said land except
the rasta in dispute, the only option to them is to have egress
and ingress through the said for use of their land. They
rasta
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have acquired easementary right by prescription and that of
necessity over the said rasta and more particularly through an
agreement i.e. the Sale Deed dated 17.09.1994 which records
their right of way through the said rasta. He further submits
that once the suit was decreed by the court of first instance
and findings were recorded in favour of the Gala’s, the
appellate court ought not to have overturned those findings. It
ought to have exercised restrain in interfering with the
aforesaid decision.
18. The above submissions were stoutly opposed on behalf of the
Ramani’s by their counsel.
19. ‘Easement’ is defined under Section 4 of the Indian Easements
1
Act, 1882 to mean a right which the owner or occupier of a
land possesses for the beneficial enjoyment of his land on the
other land which is not owned by him, to do and continue to
do something or to prevent and continue to prevent something
being done on the said land. It may be pertinent to mention
here that the land which is to be enjoyed by the beneficiary is
1
Hereinafter referred to as “The Act”, for short
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called ‘Dominant Heritage’ and the land on which the easement
is claimed is called ‘Servient Heritage’. The easementary right,
therefore, is essentially a right claimed by the owner of a land
upon another land owned by someone else so that he may
enjoy his property in the most beneficial manner.
20. Now, we first proceed to examine if the Gala’s have acquired
any easementary right over the rasta in dispute existing on the
servient heritage.
21. In the case at hand, the Gala’s are admittedly the owners of
Survey No. 48 Hissa No.15 whereas the Ramani’s are the
owners of Survey No.57 Hissa No.13A/1 on which it is alleged,
exists the rasta in dispute. The Gala’s claim that the use of the
aforesaid rasta is for the beneficial enjoyment of their land as
they have no other way of access to their land and that they
have been enjoying the said easementary right for the “last
many years”.
22. Section 15 of the Act categorically provides that for acquiring
any easementary right by prescription, the said right must
have been peaceably enjoyed in respect of the servient heritage
without any interruption for over 20 years. In the plaint,
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neither the original plaintiff Joki Woler Ruzer nor the Gala’s
have specifically claimed that they or their predecessor-in-
interest were enjoying easementary right of use of the said
rasta for over 20 years. They simply alleged that they have been
using and managing the same since “last many years”. The use
of the term “last many years” is not sufficient to mean that they
have been enjoying the same for the last 20 years. Last many
years would indicate use of the said rasta for more than a year
prior to the suit or for some years but certainly would not mean
a period of 20 or more years. Therefore, their pleadings fall
short of meeting out the legal requirement of acquiring
easementary right through prescription.
23. In this connection Shri Ahmadi, learned counsel for the
appellants, relying upon “ Ram Sarup Gupta (Dead) By Lrs.
2
vs. Bishun Narain Inter College & Ors” submitted that the
pleadings must be construed liberally and it is not necessary
that the precise language or expression used in the statute
should be used. The aforesaid decision lays down that
2
(1987) 2 SCC 555
10
pleadings should be liberally construed and need not contain
the exact language used in the statutory provision but it does
not mean that the pleadings even if fails to plead the essential
legal requirement for establishing a right, the same be so
construed so as to impliedly include what actually has not
been pleaded more particularly when it happens to be an
essential ingredient for establishing a right. Thus, the
aforesaid pleadings cannot be treated to be of sufficient
compliance of the statutory requirement. It is settled in law
that a fact which is not specifically pleaded cannot be proved
by evidence as evidence cannot travel beyond the pleadings.
24. The plaint was filed and verified by Joki Woler Ruzer who has
not entered the witness box to substantiate the pleadings as to
for how long he or his predecessor had been using the said
rasta for egress and ingress to their land before the institution
of the suit or to say that the easementary right, if any, attached
to the said land, was also transferred or purchased by his
predecessor.
25. On the contrary, the deposition of Sanjay Borkar (DW-1) who
is from the family of the original owners of the land has
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categorically stated that the original plaintiff Joki Woler Ruzer
was not having any right of way on his land and so also the
Gala’s (plaintiff Nos.2-4), the subsequent holders of the land,
rather they possess an alternative way to approach their land.
26. Navneet Liladhar Hariya (PW-1), the Power of Attorney holder
of the Gala’s, stated that the road of 20ft. in width exists on
Survey No.57 Hissa No.13A/1 which is being used as an
approach road to Survey No.48 Hissa No.15. The said rasta
was being used by predecessor-in-interest of the Gala’s but
now the Ramani’s have started raising objection. Since they
have no other way of access to their land, they are being denied
connectivity or approach to their land. As a result, access to
the Dominant Heritage stands completely blocked. In cross-
examination, he states that Dharmadhikari has also
purchased some land from Vasant Ramchandra Borkar and
that the said Dharmadhikari is having right of way through the
disputed rasta. PW-2, the then Sarpanch simply deposes that
he has knowledge of the existence of disputed rasta since his
childhood. The neighbour (PW-3) also repeated the same thing
and stated that there is a road from Salav-Murud road which
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passes through the land of the Ramani’s up to his land i.e.
Survey No.43. The said road is in existence since long and is
being used by the agriculturist. Nobody has ever raised
objection to its use. The Surveyor (PW-4) is alleged to have
surveyed the land on 26.12.1998. He had shown the existence
of the road in dispute in the sketch map prepared by him.
27. The aforesaid evidence simply proves that there exists a road
on Survey No.57 Hissa No.13A/1 for long but that by itself is
not sufficient to prove that the Gala’s have acquired any
easementary right over the same. There is no evidence to prove
that the Gala’s are in use of the said land for the last over 20
years uninterruptedly. The Gala’s have entered the scene only
on purchasing the said land on 17.09.1994 after the suit had
been filed and as such, they could not and have not deposed
anything about the pre-existing right or the easementary right
attached with the Dominant Heritage. The said right has to be
proved as existing prior to the institution of the suit. Neither
the Gala’s nor their predecessor-in-interest Joki Woler Ruzer
have dared to come in the witness box. They have only relied
13
upon the deposition of their Power of Attorney holder/the
Manager.
28. The law as understood earlier was that a General Power of
Attorney holder though can appear, plead and act on behalf of
a party he represents but he cannot become a witness on
behalf of the party represented by him as no one can delegate
his power to appear in the witness box to another party.
However, subsequently in Janki Vashdeo Bhojwani vs.
3
IndusInd Bank Ltd . , this Court held that the Power of
Attorney holder can maintain a plaint on behalf of the person
he represents provided he has personal knowledge of the
transaction in question. It was opined that the Power of
Attorney holder or the legal representative should have
knowledge about the transaction in question so as to bring on
record the truth in relation to the grievance or the offence.
However, to resolve the controversy with regard to the powers
of the General Power of Attorney holder to depose on behalf of
the person he represents, this Court upon consideration of all
3
(2005) 2 SCC 217
14
previous relevant decisions on the aspect including that of
Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State
4
of Maharashtra concluded by upholding the principle of law
Janki Vashdeo Bhojwani (supra)
laid down in and clarified
that Power of Attorney holder can depose and verify on oath
before the court but he must have witnessed the transaction
as an agent and must have due knowledge about it. The Power
of Attorney holder who has no knowledge regarding the
transaction cannot be examined as a witness. The functions of
the General Power of Attorney holder cannot be delegated to
any other person without there being a specific clause
permitting such delegation in the Power of Attorney; meaning
thereby ordinarily there cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of Attorney holder can
only depose about the facts within his personal knowledge and
not about those facts which are not within his knowledge or
are within the personal knowledge of the person who he
represents or about the facts that may have transpired much
4
(2014) 11 SCC 790
15
before he entered the scene. The aforesaid Power of Attorney
holder PW-1 had clearly deposed that he is giving evidence on
behalf of plaintiff Nos. 2 to 4 i.e. the Gala’s. He was not having
any authority to act as the Power of Attorney of the Gala’s at
the time his statement was recorded. He was granted Power of
Attorney subsequently as submitted and accepted by the
parties. Therefore, his evidence is completely meaningless to
establish that Gala’s have acquired or perfected any
easementary right over the disputed rasta in 1994 when the
suit was instituted.
30. The only proper and valuable evidence in this regard could
have been that of Joki Woler Ruzer who had instituted the suit
but he failed to depose before the court. His pleadings are also
vague and do not specifically state that he had been in use of
the rasta in dispute for over 20 years or that he had acquired
and perfected easementary right over the said rasta by
prescription or necessity.
31. In the absence of any evidence or material to show that Joki
Woler Ruzer had actually acquired any easementary right over
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the rasta in dispute before the institution of the suit, he could
not have transferred any such right in favour of the Gala’s.
32. The easementary right by necessity could be acquired only in
accordance with Section 13 of the Act which provides that such
easementary right would arise if it is necessary for enjoying the
Dominant Heritage. In the instant case, findings have been
returned not only by the appellate courts but even by the trial
court that there is an alternative way to access the Dominant
Heritage, which may be a little far away or longer which
demolishes the easement of necessity. There is no justification
to go into those findings of fact returned by the courts below.
33. In the light of the aforesaid findings, the Gala’s are not entitled
to any easementary right by necessity upon the disputed rasta .
34. The next contention is that the Gala’s have acquired
easementary right under the Sale Deed dated 17.09.1994 and
that it would not stand extinguished even if the necessity has
ceased to exist. To buttress the above submission reliance has
5
been placed upon Dr. S. Kumar & Ors. vs. S. Ramalingam .
5
(2020) 16 SCC 553
17
In the above case, the right of easement claimed was expressly
granted under the sale deed to the buyer and therefore it was
held that the right so granted cannot be defeated or
extinguished merely for the reason that easement of necessity
has come to an end.
35. The situation in the present case is quite different. The
property owned and possessed by the Gala’s was originally the
property of Ramchandra Borkar which was acquired by the
government. It was purchased by Woler Francis in public
auction from the government on 25.04.1969. Thereafter, it
devolved upon his legal heir Joki Woler Ruzer who sold it to
the predecessor-in-interest of the Gala’s vide Sale Deed dated
17.09.1994. There is no evidence whatsoever on record to
establish that the government ever transferred any
easementary right over the rasta in question to Francis Woler
or that his legal heir Joki Woler Rozer ever acquired or
perfected any easementary right over it. Therefore, the right
which was not possessed by them could not have been
transferred to the Gala’s under the Sale Deed dated
17.09.1994.
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36. The said Sale Deed dated 17.09.1994 in original has not been
produced in evidence. It was only the photocopy of the same
which was brought on record. The photocopy of a document is
inadmissible in evidence. Moreover, the said sale deed was
executed by predecessor-in-interest i.e. Joki Woler Ruzer in
favour of predecessor-in-interest of the present Gala’s. The
said sale deed would not bind the third parties who are not
signatories or parties to the said sale deed. No evidence has
been adduced to prove that Joki Woler Ruzer, predecessor-in-
interest of the Gala’s, had perfected easementary rights over
the disputed rasta and thus was legally entitled to transfer the
same . He himself has not come before the Court that he had
actually acquired any easementary right in the disputed rasta.
It is not the case of Gala’s that their predecessor-in-interest
had acquired or purchased the said property from government
auction with any easementary right over the rasta in dispute.
Thus, the Gala’s have failed to prove that they have acquired
any easementary right under the sale deed. In view of the above
discussion, reliance upon Dr. S. Kumar & Ors. (supra) is
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completely misplaced and the submission in this regard has
no merit.
37. Lastly, a frail submission was advanced that one
Dharmadhikari, owner of Survey No. 57 House No. 13A/2 is
enjoying easementary right over the said rasta and, therefore,
Gala’s cannot be denied the same benefit. The submission has
been noted to be rejected for the simple reason that in the Sale
Deed Exh . 163 , the original owner Vasant Ramchandra Borkar
while transferring land to Dharmadhikari has specifically
assigned right to use the said rasta to Dharmadhikari and not
to anyone else. The predecessor-in-interest of the Gala’s i.e.,
Joki Woler Ruzer or Francis Woler never acquired any such
right under their sale deed so as to legally transfer it to the
Gala’s. DW-1, Sanjay Vasant Borkar, grandson of the original
owner of the entire property, clearly deposed that the disputed
rasta was only for use by Dharmadhikari as per the sale deed
but no such right was sold/assigned to the predecessor-in-
interest of the Gala’s. Therefore, the Gala’s cannot acquire
easementary right as is enjoyed by Dharmadhikari whose case
stand on a totally different footing.
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38. It would not be fair on our part if we do not deal with yet one
another submission of Shri Ahmadi regarding the powers of
the appellate court in disturbing the findings recorded by the
court of first instance. The submission made in this context is
quite elementary in nature as Section 107 of the Code of Civil
Procedure, in unequivocal terms, lays down the powers of the
appellate court vis-à-vis to determine the case finally; to
remand the case; to frame issues and refer them for trial; and
to take additional evidence or to require such evidence to be
taken and shall have the same powers to perform duties as
nearly as may be that are conferred by the code to the courts
of original jurisdiction.
39. Therefore, on the simple reading of the above provision, it is
evident that the first appellate court is empowered to exercise
powers and to perform nearly the same duties as of the courts
of original jurisdiction. Therefore, the first appellate court has
the power to return findings of fact and law both and in so
returning the finding, it can impliedly overturn the findings of
the court of first instance if it is against the evidence on record
or is otherwise based upon incorrect interpretation of any
21
document or misconstruction of any evidence adduced before
the court of first instance.
40. In view of the facts and circumstances of the case and the
above discussions, we find that none of the contentions raised
by Shri Ahmadi, learned senior counsel for the appellants
(Gala’s), are of any substance. We do not find any basis to
record that the Gala’s have acquired easementary right over
the disputed rasta in any manner much less by prescription,
necessity or under an agreement. Therefore, the appellate
courts and the High Court have not committed any error of law
in dismissing Suit No.14 of 1994 of the plaintiffs/appellants
and in decreeing Suit No.7 of 1996 of the
defendants/respondents.
41. The appeals lack merit and are accordingly dismissed.
……………………………….. J.
(PANKAJ MITHAL)
……………………………….. J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
APRIL 10, 2024.
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