DR. S. KUMAR & ORS. versus S. RAMALINGAM on 16 July 2019

[2019] 10 S.C.R. 531

DR. S. KUMAR & ORS.

v.

S. RAMALINGAM

(Civil Appeal Nos.8628-8629 of 2009)

JULY 16, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Transfer of Property Act, 1882 – s. 48 – One CLR was theowner of big chunk of land on Mowbrays Road in the city of Chennai– He executed three separate sale deeds – First sale deed was infavour of defendant no.1 in respect of property measuring 3483.66sq. feet – Another adjoining land was purchased by defendant no.2-wife of defendant no.1 vide separate sale deed – Plaintiff-Respondent purchased land measuring 3525 sq. feet– Defendantno.1’s land abutted Mowbrays Road whereas the land purchasedby defendant no.2 touched the back of defendant no.1’s land –Respondent filed two suits inter alia claiming injunction against thedefendants-appellants from using a pathway shown as A B C D inthe plaint and claiming exclusive right to use the same – Anothersuit was filed restraining the defendants from preventing the plaintifffrom using the pathway to reach their land E F G H – Suits dismissed– First Appellate Court allowed the appeal and granted injunctionholding that there is no necessity of easement as the defendant no.2has access from the property of her husband which is on MowbraysRoad – High Court upheld the judgment – Held: There are threeseparate layout plans on record – First layout plan is of the landsold to defendant no.1 on December 05, 1973 wherein the adjacentland to the land sold is 12 feet wide strip throughout the length ofthe land – Second layout plan is of the land sold to defendant no.2showing that the same 12 feet wide strip abutting the land is conveyedto defendant no.2 – Third lay out plan is attached to the land soldto the plaintiff which is adjacent to the land sold to defendant no. 2– However, schedule shows 16 feet wide strip 103 feet long whichends with the outer boundary of the plot sold to defendant No. 2 –Relationship of defendant nos.1 and 2 will not negate the grant ofeasement right of passage granted to her in the sale deed onlybecause the recital is generic in nature and usually put by the deed

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Awriters – Once the land has been sold with the right of accessthrough the land adjoining the property sold, such right could notbe exclusively conferred to the plaintiff in the sale deed datedMay 31, 1988– s.48 contemplates that where a person i.e. CLRcreated different rights in or over the same property i.e. 16 feetwide strip of land and such rights cannot be exercised to their fullBextent together, then each later created right shall be subject to therights previously created – Since the right of access to defendantno.2 was reserved in the sale deed dated April 1, 1976, therefore,the vendor could not confer exclusive right to the plaintiff vide saledeed dated May 31, 1988 – Plaintiff has to maintain the 16 feetCwide passage in any case in terms of the recital in his sale deed –Therefore, if the defendant no.2 or her transferees use the passage,then such use of passage cannot be said to be causing any prejudiceto the plaintiff – Judgment of the High Court cannot be sustained –16 feet x 103 feet passage adjoining the property of the defendantsleading to the property of the plaintiff is reserved for the commonDuse of defendant no.2 and of the plaintiff – Property Law – EasementRights –Indian Easements Act, 1882 – s.41.

Property Law – Easement Rights – Right of easementvis-à-vis right of necessity – Discussed.

EAllowing the appeals, the Court

Conclusion

HELD: 1.1 There are three separate lay out plans onrecord. First, when the land was sold to defendant No. 1 onDecember 5, 1973. In the said lay out plan, the adjacent land tothe land sold is 12 feet wide strip throughout the length of theFland. Second lay out plan is of the land sold to defendant No. 2. Itshows that same 12 feet wide strip abutting the land is conveyedto defendant No. 2 on April 1, 1976. Third lay out plan is attachedto the land sold to the plaintiff vide agreement dated May 13,1978 in respect of an area which is adjacent to the land sold todefendant No. 2. However, schedule shows 16 feet wide stripG103 feet long which ends with the outer boundary of the plot soldto defendant No. 2. The relationship of defendant Nos. 1 and 2will not negate the grant of easement right of passage granted toher in the sale deed only because the recital is generic in natureand usually put by the deed writers. Since there is specific H

mention of easement rights reserved for defendant No. 2 whichrecital is supported by a strip of land 16 feet wide which providesaccess to the plot of land purchased by defendants and also tothe plaintiff. Once the land has been sold with the right of accessthrough the land adjoining the property sold, such right couldnot be exclusively conferred to the plaintiff in the sale deed datedMay 31, 1988. [Paras 12, 13] [538-G; 539-A-C]

1.2 Section 48 of the Transfer of Property Act, 1882contemplates that where a person i.e. ‘CLR’ has created differentrights in or over the same property i.e. 16 feet wide strip of landand such rights cannot be exercised to their full extent together,then each later created right shall be subject to the rightspreviously created. The exception is if special contract orreservation binding the earlier transferee is executed. Theexclusive right conferred on the plaintiff in the sale deed datedMay 31, 1988 will not be legal till such time the earlier transfereei.e. defendant No.2 has a special contract or reservation whichbinds her. Since the right of access to defendant No.2 was reservedin the sale deed dated April 1, 1976, therefore, the vendor couldnot confer exclusive right to the plaintiff vide sale deed datedMay 31, 1988. [Paras 14, 15] [539-D, F-H]

1.3 The plaintiff has to maintain the 16 feet wide passage inany case in terms of the recital in his sale deed dated May 31,1988. Therefore, if the defendant No. 2 or her transferees usethe passage, then such use of passage by defendant No. 2 or hertransferees cannot be said to be causing any prejudice to theplaintiff. The argument that right of easement stands extinguishedonce the easement of necessity comes to an end is not applicableto the facts of the present case. The argument is based on thefact that right, title and interest of both the defendants now standmerged in one person after the death of both the defendants.The rights of the parties arise out of document of title in the year1976. Still further, the rights of the parties have to be adjudicatedupon as they exist on the date of filing of the suit. The subsequentevents of inheritance vesting the property in the same personwill not take away the right of the defendants to use the passageadjacent to their land only because the defendant No.2 has gifted AB

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Apart of land to defendant No.1 or that after the death of both thedefendants, the common legal proceedings inherited theproperty.[Paras 16, 17] [540-A-D]

1.4 The appellants have been granted right to use passagein the sale deed. Thus, it is not easement of necessity beingBclaimed by the appellants. It is right granted to defendant No. 2in the sale deed therefore, such right will not extinguish in termsof Section 41 of the Indian Easements Act, 1882. In view thereof,the judgment and decree passed by the High Court suffers frommanifest error and, thus, cannot be sustained in law. The 16 feetx 103 feet passage adjoining the property of the defendants leadingCto the property of the plaintiff is reserved for the common use ofdefendant No.2 and of the plaintiff. [Paras 18, 19] [540-D-F]

Hero Vinoth (Minor) v. Seshammal (2006) 5 SCC545 : [2006] 2 Suppl. SCR 79 – referred to.

DCase Law Reference

[2006] 2 Suppl. SCR 79 referred toPara 11

CIVIL APPELLATE JURISDICTION: Civil AppealNos 8628-8629 of 2009E

From the Judgment and Order dated 06.03.2007 of the High Courtof Judicature at Madras in Second Appeal Nos.580 and 822 of 1994

Sreegesh M. K., K. R. Sasiprabhu, Advs. for the Appellants.

R. Basant, Satyam Reddy, Sr. Advs., Manu Krishnan,FA. Radhakrishnan, V. Prabhakar, Ms. Jyoti Parasher, Advs. for theRespondent.

The Judgment of the Court was delivered by HEMANT GUPTA, J.G

1. The defendants are in appeal aggrieved against the judgmentand decree passed by the High Court of Judicature at Madras on March6, 2007, whereby judgment and decree passed by the First AppellateCourt was not interfered with in the second appeal.

2. The plaintiff - respondent filed two suits, firstly, OS No. 2251of 1985 claiming an injunction against the defendants from using apathway shown as A B C D in the plaint and claiming exclusive right touse the said path. Another suit OS No. 9158 of 1986 was filed restrainingthe defendants from preventing the plaintiff from using the pathway toreach their land E F G H.

3. The learned trial court dismissed the suits on April 22, 1991holding the defendants have right of necessity of access to their propertyover the pathway A B C D in the first suit. However, the First AppellateCourt allowed the appeal on September 16, 1993 and granted injunctionas prayed holding that there is no necessity of easement as the saiddefendant has access from the property of her husband which is onMowbrays Road. The High Court has maintained the judgment anddecree of the First Appellate Court vide judgment dated March 6, 2007.

4. The facts leading to the present appeal are that one C.L.Rajasekaran was the owner of big chunk of land on Mowbrays Road inthe city of Chennai. He executed three separate sale deeds on differentdates. The first sale deed was executed in favour of defendant No. 1 -B. Shivaraman on December 5, 1973 in respect of property measuring3483.66 sq. feet. Another adjoining land was purchased by LakshmiShivaraman, wife of defendant No. 1, vide separate sale deed datedApril 1, 1976, in respect of land measuring 1062 sq. feet. The plaintiffentered into an agreement for purchase of land measuring 3525 sq. feetwith C.L. Rajasekaran on May 13, 1978 but the sale deed was executedon May 31, 1988 after a decree in a suit for specific performance wasgranted.

5. The sale of land to defendant No. 1 is abutting MowbraysRoad whereas the land purchased by defendant No. 2 is touching backof land purchased by defendant No. 1. The dispute is in respect of thepassage over which plaintiff claims an exclusive right of use in terms ofthe sale deed dated May 31, 1988 whereas defendant No. 2 claimsaccess to land purchased by her on the strength of recitals in the saledeed in her favour and also the fact that she has been using such passagefrom the day of purchase.

6. Before we advert to the respective arguments raised by learnedcounsel for the parties, some factual aspects in respect of the sale deedare in question. The copy of sale deed dated December 5, 1973 has A

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536SUPREME COURT REPORTS

Abeen produced by Mr. Basant, learned senior counsel for the plaintiff.The said sale deed recites that piece of land described in the scheduleattached with the sale deed and marked in the plan and all rights, titleand interest in the said property together with all ways sewages rightseasements advantages and all other appurtenances and privilegesheretofore enjoyed by the vendor stands conveyed to the said defendant.BThe layout plan shows that the area of land is 3483.66 sq. feet that is 44feet 3 inches x 44 feet. There is a long rectangular strip 12 feet wide inthe layout plan adjoining to the said land conveyed.

7. The second sale deed dated April 1, 1976 (Exh. B3) is in respectof plot area 1062 sq. feet having similar recitals as in the sale deedC(Exh.B1) whereas in the lay out plan in the schedule attached to the saledeed, the area marked red in the plan is the area conveyed to thedefendant No. 2. It is admitted by the parties that the colour in theoriginal site plan cannot be made out at this stage but from the documentattached with the sale deed (Exh. B4), land measuring 44 feet 3 inches Dx 24 feet was conveyed to defendant No. 2 adjoining rectangular pieceof land 12 feet wide. The plaintiff purchased land in the same block buton the rear side of the land sold to defendant No. 2 vide sale deed datedMay 31, 1988. The Schedule B of the said sale deed reads as under:

“SCHEDULE ‘B’

EAll that piece and parcel of land bearing a part of Plot 7-A, situateat Mowbrays Road, 1[st] Cross Street, Alwarpet, Madras 600 018,bearing R.S. No. 3682 (Part), measuring 56ft. East to West, Onthe Northern Side 57’6’ on the Southern side 66 ft. North to Southon the Western side and 61 ft. North South on the Eastern SideFmarked EPGH coloured Red in the plan measuring in all 3525 sq.feet together with a pathway having a width of 16 feet East toWest, and a length of 103 feet North to South marked as ABCDin the plan and coloured Green for exclusive use of the purchasersbounded on the:

GON THE NORTH BY: House and Site owned by Sivaraman and Lakshmi Sivaraman xx xx xx”

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8. Learned counsel for the appellants - defendants refers to thestatement of vendor PW-3 C.L. Rajasekaran wherein he stated that hehas divided the property in three parts. He stated that as per sale deedExh. A18, he gave exclusive right over the 16 feet passage to the plaintiffand did not give any right to anyone except him. In cross-examination,he admitted that he executed a sale deed in favour of one BharathaReddy in 1983 after leaving 16½ feet passage in between the propertiesof Bharatha Reddy and the respondents, now the appellants. The lengthof said passage is 106 feet and width 16 feet. He further admitted thatfrom 1976, the second respondent was using land measuring 16 x 106feet as her pathway.

9. On the other hand, learned counsel for the plaintiff refers to thegift deed executed by defendant No. 2 on June 7, 1976 in favour of herhusband in respect of land purchased except 222 sq. feet. Learnedcounsel for the plaintiff also refers to the written statement filed by thedefendant No. 1, which written statement was adopted by the defendantNo. 2, to argue that initially there was agreement to purchase four grounds– 1½ ground by defendant No. 1, remaining 2½ ground by defendantNo. 2. The defendant No. 1 purchased 1½ ground vide sale deed datedDecember 5, 1973 but due to ceiling problems, the second defendantpurchased only 1½ ground out of 2½ ground. Learned counsel for theplaintiff refers to the statement of defendant No. 1 who appeared asDW-1 Shivaraman wherein he deposed that he has purchased plotmeasuring 1200 sq. feet in the name of his wife in the year 1976. Thesaid defendant has admitted that 840 sq. feet of land was settled in hisfavour out of land purchased in her name. Thus, the said property wasintended to be used jointly by both the defendants. Since the land ofdefendant No. 1 is adjacent to Mowbrays Road, therefore, the defendantshave access to the respective portions purchased. Thus, the defendantNo. 2 cannot claim any easement of necessity.

10. On the basis of such facts, the argument of learned counselfor the defendants is two-fold:

Firstly, that the right of way to access property purchased bydefendant No. 2 was reserved in the sale deed dated April 1, 1976.Therefore, the vendor of the defendant No. 2 and plaintiff could notconfer exclusive right of use of passage for the use of the plaintiff.

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ATherefore, the exclusive right given to the plaintiff is in contravention ofSection 48 of the Transfer of Property Act, 1882 and, thus, the seller hasno saleable interest to confer exclusive right of user to the plaintiff.

The second argument is that merely because defendant No. 2 isthe wife of defendant No. 1, will not deprive the said defendant of theBright of passage conferred specifically to her in the sale deed. Evenotherwise, the said defendant has an easement of necessity to approachher land. The subsequent transfer in favour of her husband of part ofthe property purchased by her will not deprive the independent right ofaccess to such property merely because she happens to be the wife ofthe other defendant. The transferee from defendant No. 2 will retainCsuch right as has been granted to her in the sale deed dated April 1,1976. Therefore, keeping in view the principle of easement of necessity,the defendant No. 2 has a right to use such passage to access propertypurchased by her by separate sale deed on April 1, 1976 i.e. more thantwo years after the sale in favour of her husband. She continues to beDowner of small portion of the land purchased.

11. On the other hand, Mr. Basant, learned senior counsel for theplaintiff argues that the easement can be of three kinds i.e. when it isgranted specifically or easement of necessity or easement of prescription.There is no case set up by the defendants of easement by prescription.EThere is no easement of necessity in terms of Section 41 of the IndianEasements Act, 1882 as such easement of necessity, if any, standsextinguished when the necessity comes to an end. Reliance is placedupon the judgment in Hero Vinoth (Minor) v. Seshammal[1]. It is furthercontended that the easement rights for not granted specifically to thedefendant No. 2 as the recitals in the sale deed are generic in natureFusually put by the deed writers so as to confer complete title over theland sold to the defendants but that will not include the grant of anyeasement rights to the defendants.

12. We have heard the learned counsel for the parties at lengthand find merit in the arguments raised by learned counsel for theGdefendants. There are three separate lay out plans on record. First,when the land was sold to defendant No. 1 - B. Shivaraman on December5, 1973. In the said lay out plan, the adjacent land to the land sold is 12feet wide strip throughout the length of the land. Second lay out plan is of the land sold to defendant No. 2. It shows that same 12 feet widestrip abutting the land is conveyed to defendant No. 2 on April 1, 1976.Third lay out plan is attached to the land sold to the plaintiff vide agreementdated May 13, 1978 in respect of an area which is adjacent to the landsold to defendant No. 2. However, schedule shows 16 feet wide strip103 feet long which ends with the outer boundary of the plot sold todefendant No. 2.

13. The relationship of defendant Nos. 1 and 2 will not negate thegrant of easement right of passage granted to her in the sale deed onlybecause the recital is generic in nature and usually put by the deed writers.Since there is specific mention of easement rights reserved for defendantNo. 2 which recital is supported by a strip of land 16 feet wide whichprovides access to the plot of land purchased by defendants and also tothe plaintiff. Once the land has been sold with the right of access throughthe land adjoining the property sold, such right could not be exclusivelyconferred to the plaintiff in the sale deed dated May 31, 1988.

14. Section 48 of the Transfer of Property Act, 1882, relied uponby the learned counsel for the appellants, reads thus:

“48. Priority of rights created by transfer. – Where a personpurports to create by transfer at different times rights in or overthe same immoveable property, and such rights cannot all exist orbe exercised to their full extent together, each later created rightshall, in the absence of a special contract or reservation bindingthe earlier transferees, be subject to the rights previously created.”

15. The said provision contemplates that where a person i.e.Rajasekaran has created different rights in or over the same propertyi.e. 16 feet wide strip of land and such rights cannot be exercised to theirfull extent together, then each later created right shall be subject to therights previously created. The exception is if special contract orreservation binding the earlier transferee is executed. It will mean thatthe exclusive right conferred on the plaintiff in the sale deed dated May31, 1988 will not be legal till such time the earlier transferee i.e. defendantNo. 2 has a special contract or reservation which binds her. Since theright of access to defendant No. 2 was reserved in the sale deed datedApril 1, 1976, therefore, the vendor could not confer exclusive right tothe plaintiff vide sale deed dated May 31, 1988.

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16. The plaintiff has to maintain the 16 feet wide passage in anycase in terms of the recital in his sale deed dated May 31, 1988. Therefore,if the defendant No. 2 or her transferees use the passage, then such useof passage by defendant No. 2 or her transferees cannot be said to becausing any prejudice to the plaintiff.

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B17. The argument that right of easement stands extinguished oncethe easement of necessity comes to an end is not applicable to the factsof the present case. The argument is based on the fact that right, titleand interest of both the defendants now stand merged in one personafter the death of both the defendants. The rights of the parties ariseout of document of title in the year 1976. Still further, the rights of theCparties have to be adjudicated upon as they exist on the date of filing ofthe suit. The subsequent events of inheritance vesting the property inthe same person will not take away the right of the defendants to usethe passage adjacent to their land only because the defendant No. 2 hasgifted part of land to defendant No. 1 or that after the death of both theDdefendants, the common legal proceedings inherited the property.

18 The appellants have been granted right to use passage in thesale deed. Thus, it is not easement of necessity being claimed by theappellants. It is right granted to defendant No. 2 in the sale deed therefore,such right will not extinguish in terms of Section 41 of the IndianEasements Act, 1882.

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19.. In view thereof, we find that the judgment and decree passedby the High Court suffers from manifest error and, thus, cannot besustained in law. Accordingly, the appeals are allowed. The 16 feetx 103 feet passage adjoining the property of the defendants leading toFthe property of the plaintiff is reserved for the common use of defendantNo. 2 and of the plaintiff. No costs.

Divya Pandey

Appeals allowed.

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